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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons for Judgment: McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)

Introduction: 0:00:22, paragraphs 1 to 2

I: The Case: 0:01:00, paragraphs 3 to 15

II: Legislation: 0:09:16, paragraph 16

III: Prior Decisions: 0:12:08

III(A): Ontario Superior Court of Justice (Himel J.): 0:16:35, paragraphs 17 to 24

III(B): Ontario Court of Appeal (Doherty, Rosenberg, Feldman, MacPherson and Cronk JJ.A.): 0:21:46, paragraphs 25 to 35

IV: Discussion: 0:21:46, paragraphs 36 to 37

IV(A): Preliminary Issues: 0:22:29

IV(A)(1): Revisiting the Prostitution Reference: 0:22:33, paragraphs 38 to 47

IV(A)(2): Deference to the Application Judge’s Findings on Social and Legislative Facts: 0:27:12, paragraphs 48 to 56

IV(B): Section 7 Analysis: 0:31:47, paragraph 57

IV(B)(1): Is Security of the Person Engaged?: 0:32:11, paragraphs 58 to 60

IV(B)(1)(a): Sections 197 and 210: Keeping a Common Bawdy-House: 0:33:49, paragraphs 61 to 65

IV(B)(1)(b): Section 212(1)(j): Living on the Avails of Prostitution: 0:36:47, paragraphs 66 to 67

IV(B)(1)(c): Section 213(1)(c): Communicating in a Public Place: 0:37:47, paragraphs 68 to 72

IV(B)(2): A Closer Look at Causation: 0:39:16, paragraph 73

IV(B)(2)(a): The Nature of the Required Causal Connection: 0:39:52, paragraphs 74 to 78

IV(B)(2)(b): Is the Causal Connection Negated by Choice or the Role of Third Parties?: 0:42:51, paragraphs 79 to 92

IV(B)(3): Principles of Fundamental Justice: 0:47:32

IV(B)(3)(a): The Applicable Norms: 0:47:36, paragraphs 93 to 123

IV(B)(3)(b): The Relationship Between Section 7 and Section 1: 1:01:51, paragraphs 124 to 129

IV(B)(4): Do the Impugned Laws Respect the Principles of Fundamental Justice?: 1:05:23

IV(B)(4)(a): Section 210: The Bawdy-House Prohibition: 1:05:28

IV(B)(4)(a)(i): The Object of the Provision: 1:05:33, paragraphs 130 to 132

IV(B)(4)(a)(ii): Compliance With the Principles of Fundamental Justice: 1:07:03, paragraphs 133 to 136

IV(B)(4)(b): Section 212(1)(j): Living on the Avails of Prostitution: 1:08:48

IV(B)(4)(b)(i): The Object of the Provision: 1:08:55, paragraphs 137 to 138

IV(B)(4)(b)(ii): Compliance With the Principles of Fundamental Justice: 1:10:00, paragraphs 139 to 145

IV(B)(4)(c): Section 213(1)(c): Communicating in Public for the Purposes of Prostitution: 1:12:35

IV(B)(4)(c)(i): The Object of the Provision: 1:12:43, paragraphs 146 to 147

IV(B)(4)(c)(ii): Compliance With the Principles of Fundamental Justice: 1:14:39, paragraphs 148 to 159

IV(C): Do the Prohibitions Against Communicating in Public Violate Section 2(b) of the Charter?: 1:19:34, paragraph 160

IV(D): Are the Infringements Justified Under Section 1 of the Charter?: 1:19:46, paragraphs 161 to 163

V: Result and Remedy: 1:21:03, paragraphs 164 to 169

Headnote provided by the Supreme Court of Canada:

B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C‑46, which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter: s. 210 makes it an offence to keep or be in a bawdy‑house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures — such as hiring security guards or “screening” potential clients — that could protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.

The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1. The Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the definition of “common bawdy‑house” as it applies to s. 210, however it suspended the declaration of invalidity for 12 months. The court declared that s. 212(1)(j) was an unjustifiable violation of s. 7, ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”. It further held the communicating prohibition under s. 213(1)(c) did not violate either s. 2(b) or s. 7. The Attorneys General appeal from the declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. B, L and S cross‑appeal on the constitutionality of s. 213(1)(c) and in respect of the s. 210 remedy.

Held: The appeals should be dismissed and the cross‑appeal allowed. Sections 210, as it relates to prostitution, and ss. 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter. The word “prostitution” is struck from the definition of “common bawdy-house” in s. 197(1) of the Criminal Code as it applies to s. 210 only. The declaration of invalidity should be suspended for one year.

The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

The common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. However, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. The threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. In this case, the application judge was entitled to rule on the new legal issues of whether the laws in question violated the security of the person interests under s. 7, as the majority decision of this Court in the Prostitution Reference was based on the s. 7 physical liberty interest alone. Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years. The application judge was not, however, entitled to decide the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference and was binding on her.

The application judge’s findings on social and legislative facts are entitled to deference. The standard of review for findings of fact — whether adjudicative, social, or legislative — remains palpable and overriding error.

The impugned laws negatively impact security of the person rights of prostitutes and thus engage s. 7. The proper standard of causation is a flexible “sufficient causal connection” standard, as correctly adopted by the application judge. The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.

The applicants have also established that the deprivation of their security of the person is not in accordance with the principles of fundamental justice: principles that attempt to capture basic values underpinning our constitutional order. This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective). These are three distinct principles, but overbreadth is related to arbitrariness, in that the question for both is whether there is no connection between the law’s effect and its objective. All three principles compare the rights infringement caused by the law with the objective of the law, not with the law’s effectiveness; they do not look to how well the law achieves its object, or to how much of the population the law benefits or is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.

Applying these principles to the impugned provisions, the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

While the Attorneys General have not seriously argued that the laws, if found to infringe s. 7, can be justified under s. 1, some of their arguments under s. 7 are properly addressed at this stage of the analysis. In particular, they attempt to justify the living on the avails provision on the basis that it must be drafted broadly in order to capture all exploitative relationships. However, the law not only catches drivers and bodyguards, who may actually be pimps, but it also catches clearly non‑exploitative relationships, such as receptionists or accountants who work with prostitutes. The law is therefore not minimally impairing. Nor, at the final stage of the s. 1 inquiry, is the law’s effect of preventing prostitutes from taking measures that would increase their safety, and possibly save their lives, outweighed by the law’s positive effect of protecting prostitutes from exploitative relationships. The impugned laws are not saved by s. 1.

Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes. The regulation of prostitution is a complex and delicate matter. It will be for Parliament, should it choose to do so, to devise a new approach, reflecting different elements of the existing regime. Considering all the interests at stake, the declaration of invalidity should be suspended for one year.

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View Details

See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

Listen on 1.25x, 1.5x, 1.75x, or 2x playback speeds for faster “reading”.

The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons for Judgment:Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.

Introduction: 0:00:28, paragraphs 1 to 3

I: Need for Clarification and Simplification of the Law of Judicial Review: 0:02:02, paragraphs 4 to 15

II: Determining the Applicable Standard of Review: 0:09:00, paragraphs 16 to 22

II(A): Presumption That Reasonableness Is the Applicable Standard: 0:14:03, paragraphs 23 to 32

II(B): Derogation From the Presumption of Reasonableness Review on the Basis of Legislative Intent: 0:21:11, paragraph 33

II(B)(1): Legislated Standards of Review: 0:22:02, paragraphs 34 to 35

II(B)(2): Statutory Appeal Mechanisms: 0:22:56, paragraphs 36 to 52

II(C): The Applicable Standard Is Correctness Where Required by the Rule of Law: 0:35:31, paragraphs 53 to 54

II(C)(1): Constitutional Questions: 0:36:29, paragraphs 55 to 57

II(C)(2): General Questions of Law of Central Importance to the Legal System as a Whole: 0:38:10, paragraphs 58 to 62

II(C)(3): Questions Regarding the Jurisdictional Boundaries Between Two or More Administrative Bodies: 0:41:48, paragraphs 63 to 64

II(D): A Note Regarding Jurisdictional Questions: 0:43:16, paragraphs 65 to 68

II(E): Other Circumstances Requiring a Derogation From the Presumption of Reasonableness Review: 0:47:31, paragraphs 69 to 72

III: Performing Reasonableness Review: 0:51:48, paragraphs 73 to 75

III(A): Procedural Fairness and Substantive Review: 0:52:52, paragraphs 76 to 81

III(B): Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes: 0:56:23, paragraphs 82 to 87

III(C): Reasonableness Is a Single Standard That Accounts for Context: 1:00:12, paragraphs 88 to 90

III(D): Formal Reasons for a Decision Should Be Read in Light of the Record and With Due Sensitivity to the Administrative Setting in Which They Were Given: 1:01:57, paragraphs 91 to 98

III(E): A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision: 1:08:42, paragraphs 99 to 101

III(E)(1): A Reasonable Decision Is Based on an Internally Coherent Reasoning: 1:10:22, paragraphs 102 to 104

III(E)(2): A Reasonable Decision Is Justified in Light of the Legal and Factual Constraints That Bear on the Decision: 1:12:04, paragraphs 105 to 107

III(E)(2)(a): Governing Statutory Scheme: 1:13:36, paragraphs 108 to 110

III(E)(2)(b): Other Statutory or Common Law: 1:16:49, paragraphs 111 to 114

III(E)(2)(c): Principles of Statutory Interpretation: 1:19:55, paragraphs 115 to 124

III(E)(2)(d): Evidence Before the Decision Maker: 1:25:55, paragraphs 125 to 126

III(E)(2)(e): Submissions of the Parties: 1:27:13, paragraphs 127 to 128

III(E)(2)(f): Past Practices and Past Decisions: 1:28:30, paragraphs 129 to 132

III(E)(2)(g): Impact of the Decision on the Affected Individual: 1:31:52, paragraphs 133 to 135

III(F): Review in the Absence of Reasons: 1:33:31, paragraphs 136 to 138

III(G): A Note on Remedial Discretion: 1:35:42, paragraphs 139 to 142

IV: Role of Prior Jurisprudence: 1:38:09, paragraphs 143 to 145

V: Mr. Vavilov’s Application for Judicial Review: 1:40:16, paragraph 146

V(A): Facts: 1:41:04, paragraphs 147 to 151

V(B): Procedural History: 1:44:47

V(B)(1): Registrar’s Decision: 1:44:50, paragraphs 152 to 159

V(B)(2): Federal Court (Bell J.), 2015 FC 960, [2016] 2 F.C.R. 39: 1:50:38, paragraphs 160 to 163

V(B)(3): Federal Court of Appeal (Stratas J.A. with Webb J.A. Concurring; Gleason J.A. Dissenting), 2017 FCA 132, [2018] 3 F.C.R. 75: 1:52:11, paragraphs 164 to 168

V(C): Analysis: 1:54:49

V(C)(1): Standard of Review: 1:54:52, paragraphs 169 to 170

V(C)(2): Review for Reasonableness: 1:56:09, paragraphs 171 to 173

V(C)(2)(a): Section 3(2) of the Citizenship Act: 1:57:48, paragraphs 174 to 176

V(C)(2)(b): The Foreign Missions and International Organizations Act and the Treaties It Implements: 2:00:33, paragraphs 177 to 182

V(C)(2)(c): Jurisprudence Interpreting Section 3(2) of the Citizenship Act: 2:07:07, paragraphs 183 to 188

V(C)(2)(d): Possible Consequences of the Registrar’s Interpretation: 2:12:29, paragraphs 189 to 193

V(D): Conclusion: 2:16:23, paragraphs 194 to 196

V(E): Disposition: 2:18:55, paragraph 197

Joint Concurring Reasons:Abella and Karakatsanis JJ.

I: Introduction: 2:19:07, paragraphs 198 to 201

II: The Evolution of Canadian Administrative Law: 2:21:55, paragraphs 202 to 229

III: The Majority’s Reasons: 2:41:35, paragraphs 230 to 278

IV: Going Forward: 3:13:22, paragraphs 279 to 313

V: Application to Mr. Vavilov: 3:34:46, paragraphs 314 to 341

VI: Conclusion: 3:48:59, paragraphs 342 to 343

Headnote provided by the Supreme Court of Canada:

V was born in Toronto in 1994. At the time of his birth, his parents were posing as Canadians under assumed names. In reality, they were foreign nationals working on assignment for the Russian foreign intelligence service. V did not know that his parents were not who they claimed to be. He believed that he was a Canadian citizen by birth, he lived and identified as a Canadian, and he held a Canadian passport. In 2010, V’s parents were arrested in the United States and charged with espionage. They pled guilty and were returned to Russia. Following their arrest, V’s attempts to renew his Canadian passport proved unsuccessful. However, in 2013, he was issued a certificate of Canadian citizenship.

Then, in 2014, the Canadian Registrar of Citizenship cancelled V’s certificate on the basis of her interpretation of s. 3(2)(a) of the Citizenship Act. This provision exempts children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” from the general rule that individuals born in Canada acquire Canadian citizenship by birth. The Registrar concluded that because V’s parents were employees or representatives of Russia at the time of V’s birth, the exception to the rule of citizenship by birth in s. 3(2)(a), as she interpreted it, applied to V, who therefore was not, and had never been, entitled to citizenship. V’s application for judicial review of the Registrar’s decision was dismissed by the Federal Court. The Court of Appeal allowed V’s appeal and quashed the Registrar’s decision because it was unreasonable. The Minister of Citizenship and Immigration appeals.

Held: The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ.: The Registrar’s decision to cancel V’s certificate of citizenship was unreasonable, and the Court of Appeal’s decision to quash it should be upheld. It was notreasonable for the Registrar to interpret s. 3(2)(a) of the Citizenship Actas applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children’s birth.

More generally, this appeal and its companion cases (Bell Canada v. Canada (Attorney General),2019 SCC 66, [2019] 4 S.C.R. 845) provide an opportunity to consider and clarify the law applicable to the judicial review of administrative decisions as addressed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and subsequent cases. The submissions presented to the Court have highlighted two aspects of the current framework which need clarification. The first aspect is the analysis for determining the standard of review. The second aspect is the need for better guidance from this Court on the proper application of the reasonableness standard.

It has become clear that Dunsmuir’s promise of simplicity and predictability has not been fully realized. Certain aspects of the current standard of review framework are unclear and unduly complex. The former contextual analysis has proven to be unwieldy and offers limited practical guidance for courts attempting to determine the standard of review. The practical effect is that courts struggle in conducting the analysis, and debates surrounding the appropriate standard and its application continue to overshadow the review on the merits, thereby undermining access to justice. A reconsideration of the Court’s approach is therefore necessary in order to bring greater coherence and predictability to this area of law. A revised framework to determine the standard of review where a court reviews the merits of an administrative decision is needed.

In setting out a revised framework, this decision departs from the Court’s existing jurisprudence on standard of review in certain respects. Any reconsideration of past precedents can be justified only by compelling circumstances and requires carefully weighing the impact on legal certainty and predictability against the costs of continuing to follow a flawed approach. Although adhering to the established jurisprudence will generally promote certainty and predictability, in some instances doing so will create or perpetuate uncertainty. In such circumstances, following a prior decision would be contrary to the underlying values of clarity and certainty in the law.

The revised standard of review analysis begins with a presumption that reasonableness is the applicable standard in all cases. Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to fulfill its mandate and interpret the law applicable to all issues that come before it. Where a legislature has not explicitly provided that a court is to have a more involved role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended a minimum of judicial interference. Respect for these institutional design choices requires a reviewing court to adopt a posture of restraint. Thus, whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. As a result, it is no longer necessary for courts to engage in a contextual inquiry in order to identify the appropriate standard. Conclusively closing the door on the application of a contextual analysis to determine the applicable standard streamlines and simplifies the standard of review framework. As well, with the presumptive application of the reasonableness standard, the relative expertise of administrative decision makers is no longer relevant to a determination of the standard of review. It is simply folded into the new starting point. Relative expertise remains, however, a relevant consideration in conductingreasonableness review.

The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard to apply. This will be the case where it has explicitly prescribed the applicable standard of review. Any framework rooted in legislative intent must respect clear statutory language. The legislature may also direct that derogation from the presumption is appropriate by providing for a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. Where a legislature has provided a statutory appeal mechanism, it has subjected the administrative regime to appellate oversight and it expectsthe court to scrutinize such administrative decisions on an appellate basis. The applicable standard is therefore to be determined with reference to the nature of the question and to the jurisprudence on appellate standards of review. Where, for example, a court hears an appeal from an administrative decision, it would apply the standard of correctness to questions of law, including on statutory interpretation and the scope of a decision maker’s authority. Where the scope of the statutory appeal includes questions of fact or questions of mixed fact and law, the standard is palpable and overriding error for such questions.

Giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence. This shift is necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by weighing the values of certainty and correctness. First, there has been significant and valid judicial and academic criticism of the Court’s recent approach to statutory appeal rights and of the inconsistency inherent in a standard of review framework based on legislative intent that otherwise declines to give meaning to an express statutory right of appeal. Second, there is no satisfactory justification for the recent trend in the Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis, absent exceptional wording. More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute. Accepting that the legislature intends an appellate standard of review to be applied also helps to explain why many statutes provide for bothappeal and judicial review mechanisms, thereby indicating two roles for reviewing courts. Finally, because the presumption of reasonableness review is no longer premised upon notions of relative expertise and is now based on respect for the legislature’s institutional design choice, departing from the presumption of reasonableness review in the context of a statutory appeal respects this legislative choice.

The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of legal questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. First, questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters require a final and determinate answer from the courts. Second, the rule of law requires courts to have the final word with regard to general questions of law that are of central importance to the legal system as a whole because they require uniform and consistent answers. Third, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another since the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies. The application of the correctness standard for such questions therefore respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary.

The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. The possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case is not definitively foreclosed. However, any new basis for correctness review would be exceptional and would need to be consistent with this framework and the overarching principles set out in this decision. Any new correctness category based on legislative intent would require a signal of legislative intent as strong and compelling as a legislated standard of review or a statutory appeal mechanism. Similarly, a new correctness category based on the rule of law would be justified only where failure to apply correctness review would undermine the rule of law and jeopardize the proper functioning of the justice system in a manner analogous to the three situations described in this decision.

For example, the Court is not persuaded that it should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. A lack of unanimity within an administrative tribunal is the price to pay for decision‑making freedom and independence. While discord can lead to legal incoherence, a more robust form of reasonableness review is capable of guarding against such threats to the rule of law. As well, jurisdictional questions should no longer be recognized as a distinct category subject to correctness review; there are no clear markers to distinguish such questions from other questions related to interpreting an administrative decision maker’s enabling statute. A proper application of the reasonableness standard will enable courts to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment on jurisdictional issues and without having to apply the correctness standard.

Going forward, a court seeking to determine what standard of review is appropriate should look to this decision first in order to determine how the general framework applies. Doing so may require the court to resolve subsidiary questions on which past precedents will often continue to provide helpful guidance and will continue to apply essentially without modification, such as cases concerning general questions of law of central importance to the legal system as a whole or those relating to jurisdictional boundaries between administrative bodies. On other issues, such as the effect of statutory appeal mechanisms, true questions of jurisdiction or the former contextual analysis, certain cases will necessarily have less precedential force.

There is also a need for better guidance from the Court on the proper application of the reasonableness standard, what that standard entails and how it should be applied in practice. Reasonableness review is meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. Its starting point lies in the principle of judicial restraint and in demonstrating respect for the distinct role of administrative decision makers. However, it is not a “rubber‑stamping” process or a means of sheltering decision makers from accountability. While courts must recognize the legitimacy and authority of administrative decision makers and adopt a posture of respect, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be justified. In conducting reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale, to ensure that the decision as a whole is transparent, intelligible and justified. Judicial review is concerned with both the outcome of the decision and the reasoning process that led to that outcome. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker.

Reasonableness review is methodologically distinct from correctness review. The court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it. A court applying the reasonableness standard does not ask what decision it would have made in place of the administrative decision maker, attempt to ascertain the range of possible conclusions, conduct a new analysis or seek to determine the correct solution to the problem. Instead, the reviewing court must consider only whether the decision made by the decision maker, including both the rationale for the decision and the outcome to which it led, was unreasonable.

In cases where reasons are required, they are the starting point for reasonableness review, as they are the primary mechanism by which decision makers show that their decisions are reasonable. Reasons are the means by which the decision maker communicates the rationale for its decision: they explain how and why a decision was made, help to show affected parties that their arguments have been considered and that the decision was made in a fair and lawful manner, and shield against arbitrariness. A principled approach to reasonableness review is therefore one whichputs those reasons first. This enables a reviewing court to assess whether the decision as a whole is reasonable. Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision‑making process.

In many cases, formal reasons for a decision will not be given or required. Even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason. There will nonetheless be situations in which neither the record nor the larger context sheds light on the basis for the decision. In such cases, the reviewing court must still examine the decision in light of the relevant factual and legal constraints on the decision maker in order to determine whether the decision is reasonable.

It is conceptually useful to consider two types of fundamental flaws that tend to render a decision unreasonable. The first is a failure of rationality internal to the reasoning process. To be reasonable, a decision must be based on an internally coherent reasoning that is both rational and logical. A failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a line‑by‑line treasure hunt for error. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic. Because formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point. Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies.

The second type of fundamental flaw arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. Although reasonableness is a single standard that already accounts for context, and elements of a decision’s context should not modulate the standard or the degree of scrutiny by the reviewing court, what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. The governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision maker and facts of which the decision maker may take notice, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies, are all elements that will generally be relevant in evaluating whether a given decision is reasonable. Such elements are not a checklist; they may vary in significance depending on the context and will necessarily interact with one another.

Accordingly, a reviewing court may find that a decision is unreasonable when examined against these contextual considerations. Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. A proper application of the reasonableness standard is capable of allaying the concern that an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended. Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority.

Both statutory and common law will also impose constraints on how and what an administrative decision maker can lawfully decide. Any precedents on the issue before the administrative decision maker or on a similar issue, as well as international law in some administrative decision making contexts, will act as a constraint on what the decision maker can reasonably decide. Whether an administrative decision maker has acted reasonably in adapting a legal or equitable doctrine involves a highly context‑specific determination.

Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Where this is the applicable standard, the reviewing court does not undertake a de novo analysis of the question or ask itself what the correct decision would have been. But an approach to reasonableness review that respects legislative intent must assume that those who interpret the law, whether courts or administrative decision makers, will do so in a manner consistent with the modern principle of statutory interpretation. Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision.

Furthermore, the decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. The reasons must also meaningfully account for the central issues and concerns raised by the parties, even though reviewing courts cannot expect administrative decision makers to respond to every argument or line of possible analysis.

While administrative decision makers are not bound by their previous decisions, they must be concerned with the general consistency of administrative decisions. Therefore, whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Finally, individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention.

The question of the appropriate remedy — specifically, whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons — is multi‑faceted. The choice of remedy must be guided by the rationale for applying the reasonableness standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, concerns related to the proper administration of the justice system, the need to ensure access to justice and the goal of expedient and cost‑efficient decision making. Giving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons. However, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended. An intention that the administrative decision maker decide the matter at first instance cannot give rise to endless judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and efficient use of public resources may also influence the exercise of a court’s discretion to remit the matter.

In the case at bar, there is no basis for departing from the presumption of reasonableness review. The Registrar’s decision has come before the courts by way of judicial review, not by way of a statutory appeal. Given that Parliament has not prescribed the standard to be applied, there is no indication that the legislature intended a standard of review other than reasonableness. The Registrar’s decision does not give rise to any constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between administrative bodies. As a result, the standard to be applied in reviewing the Registrar’s decision is reasonableness.

The Registrar’s decision was unreasonable. She failed to justify her interpretation of s. 3(2)(a) in light of the constraints imposed by s. 3 considered as a whole, by international treaties that inform its purpose, by the jurisprudence on the interpretation of s. 3(2)(a), and by the potential consequences of her interpretation. Each of these elements — viewed individually and cumulatively — strongly supports the conclusion that s. 3(2)(a) was not intended to apply to children of foreign government representatives or employees who have not been granted diplomatic privileges and immunities. Though V had raised many of these considerations, the Registrar failed to address those submissions in her reasons and did not do more than conduct a cursory review of the legislative history of s. 3(2)(a) and conclude that her interpretation was not explicitly precluded by its text.

First, the Registrar failed to address the immediate statutory context of s. 3(2)(a), which provides clear support for the conclusion that allof the persons contemplated by s. 3(2)(a) must have been granted diplomatic privileges and immunities in some form for the exception to apply. Second, the Registrar disregarded compelling submissions that s. 3(2) is a narrow exception consistent with established principles of international law and with the leading international treaties that extend diplomatic privileges and immunities to employees and representatives of foreign governments. Third, it was a significant omission to ignore the relevant cases that were before the Registrar which suggest that s. 3(2)(a) was intended to apply only to those individuals whose parents have been granted diplomatic privileges and immunities. Finally, there is no evidence that the Registrar considered the potential consequences of expanding her interpretation of s. 3(2)(a) to include all individuals who have not been granted diplomatic privileges and immunities. Rules concerning citizenship require a high degree of interpretive consistency in order to shield against arbitrariness. The Registrar’s interpretation cannot be limited to the children of spies — its logic would be equally applicable to other scenarios. As well, provisions such as s. 3(2)(a) must be given a narrow interpretation because they potentially take away rights which otherwise benefit from a liberal and broad interpretation. Yet there is no indication that the Registrar considered the potential harsh consequences of her interpretation, or whether, in light of those potential consequences, Parliament would have intended s. 3(2)(a) to apply in this manner. Although the Registrar knew her interpretation was novel, she failed to provide a rationale for her expanded interpretation.

It was therefore unreasonable for the Registrar to find that s. 3(2)(a) can apply to individuals whose parents have not been granted diplomatic privileges and immunities in Canada. It is undisputed that V’s parents had not been granted such privileges and immunities. No purpose would therefore be served by remitting this matter to the Registrar. Given that V was born in Canada, his status is governed only by the general rule of citizenship by birth. He is a Canadian citizen.

Per Abella and Karakatsanis JJ.: There is agreement with the majority that the appeal should be dismissed. The Registrar’s decision to cancel V’s citizenship certificate was unreasonable and was properly quashed by the Court of Appeal.

There is also agreement with the majority that there should be a presumption of reasonableness in judicial review. The contextual factors analysis should be eliminated from the standard of review framework, and “true questions of jurisdiction” should be abolished as a separate category of issues subject to correctness review. However, the elimination of these elements does not support the foundational changes to judicial review outlined in the majority’s framework that result in expanded correctness review. Rather than confirming a meaningful presumption of deference for administrative decision-makers, the majority strips away deference from hundreds of administrative actors, based on a formalistic approach that ignores the legislature’s intention to leave certain legal and policy questions to administrative decision-makers. The majority’s presumption of reasonableness review rests on a totally new understanding of legislative intent and the rule of law and prohibits any consideration of well‑established foundations for deference. By dramatically expanding the circumstances in which generalist judges will be entitled to substitute their own views for those of specialized decision-makers who apply their mandates on a daily basis, the majority’s framework fundamentally reorients the relationship between administrative actors and the judiciary, thus advocating a profoundly different philosophy of administrative law.

The majority’s framework rests on a flawed and incomplete conceptual account of judicial review, one that unjustifiably ignores the specialized expertise of administrative decision-makers and reads out the foundations of the modern understanding of legislative intent. Instead of understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely. In so doing, the majority disregards the historically accepted reason whythe legislature intended to delegate authority to an administrative actor. In particular, such an approach ignores the possibility that specialization and expertise are embeddedinto this legislative choice. Post‑Dunsmuir, the Courthas been steadfast in confirming the central role of specialization and expertise, affirming their connection to legislative intent, and recognizing that they give administrative decision-makers the interpretative upper hand on questions of law. Specialized expertise has become thecore rationale for deference. Giving proper effect to the legislature’s choice to delegate authority to an administrative decision-maker requires understanding the advantages that the decision-maker may enjoy in exercising its mandate. Chief among those advantages are the institutional expertise and specialization inherent to administering a particular mandate on a daily basis. In interpreting their enabling statutes, administrative actors may have a particularly astute appreciation for the on‑the‑ground consequences of particular legal interpretations, of statutory context, of the purposes that a provision or legislative scheme are meant to serve, and of specialized terminology. The advantages stemming from specialization and expertise provide a robust foundation for deference. The majority’s approach accords no weight to such institutional advantages and banishes expertise from the standard of review analysis entirely. The removal of the current conceptual basis for deference opens the gates to expanded correctness review.

In the majority’s framework, deference gives way whenever the rule of law demands it. This approach, however, flows from a court‑centric conception of the rule of law. The rule of law means that administrative decision-makers make legal determinations within their mandate; it does not mean that only judges decide questions of law with an unrestricted license to substitute their opinions for those of administrative actors through correctness review. The majority’s approach not only erodes the presumption of deference; it erodes confidence in the fact that law‑making and legal interpretation are shared enterprises between courts and administrative decision-makers. Moreover, access to justice is at the heart of the legislative choice to establish a robust system of administrative law. This goal is compromised when a narrow conception of the rule of law is invoked to impose judicial hegemony over administrative decision-makers, which adds unnecessary expense and complexity. Authorizing more incursions into the administrative system by judges and permitting de novo review of every legal decision adds to the delay and cost of obtaining a final decision.

The majority’s reformulation of “legislative intent” invites courts to apply an irrebuttable presumption of correctness review whenever an administrative scheme includes a right of appeal. Elevating appeal clauses to indicators of correctness review creates a two‑tier system that defers to the expertise of administrative decision-makers only where there is no appeal clause. Yet appeal rights do not represent a different institutional structure that requires a more searching form of review. The mere fact that a statute contemplates an appeal says nothing about the degree of deferencerequired in the review process. The majority’s position hinges almost entirely on a textualist argument — i.e., that the presence of the word “appeal” indicates a legislative intent that courts apply the same standards of review found in civil appellate jurisprudence. This disregards long‑accepted institutional distinctions between courts and administrative decision-makers. The continued use by legislatures of the term “appeal” cannot be imbued with the intent that the majority ascribes to it. The idea that appellate standards of reviewmust be applied to every right of appeal is entirely unsupported by the jurisprudence. For at least25 years, the Court has not treated statutory rights of appeal as a determinative reflection of legislative intent, and such clauses have played little or no role in the standard of review analysis. Moreover, pre‑Dunsmuir, statutory rights of appeal were stillseen as only one factor and not as unequivocal indicators of correctness review. Absent exceptional circumstances, a statutory right of appeal does not displace the presumption of reasonableness.

The majority’s disregard for precedent and stare decisis has the potential to undermine both the integrity of the Court’s decisions, and public confidence in the stability of the law. Stare decisis places significant limits on the Court’s ability to overturn its precedents. The doctrine promotes the predictable and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the integrity of the judicial process. Respect for precedent also safeguards the Court’s institutional legitimacy. The precedential value of a judgment does not expire with the tenure of the panel of judges that decided it. When the Court does choose to overrule its own precedents, it should do so carefully, with moderation, and with due regard for all the important considerations that undergird the doctrine of stare decisis. A nuanced balance must be struck between maintaining the stability of the common law and ensuring that the law is flexible and responsive enough to adapt to new circumstances and societal norms. Stare decisis plays a critical role in maintaining that balance and upholding the rule of law.

There is no principled justification for departing from the existing jurisprudence and abandoning the Court’s long‑standing view of how statutory appeal clauses impact the standard of review analysis. In doing so, the majority disregards the high threshold required to overturn the Court’s decisions. The unprecedented wholesale rejection of an entire body of jurisprudence is particularly unsettling. The affected cases are numerous and include many decisions conducting deferential review even in the face of a statutory right of appeal and bedrock judgments affirming the relevance of administrative expertise to the standard of review analysis. Overruling these judgments flouts stare decisis, which prohibits courts from overturning past decisions that simply represent a choice with which the current bench does not agree. The majority’s approach also has the potential to disturb settled interpretations of many statutes that contain a right of appeal; every existing interpretation of such statutes that has been affirmed under a reasonableness standard will be open to fresh challenge. Moreover, if the Court, in its past decisions, misconstrued the purpose of statutory appeal clauses, legislatures were free to clarify this interpretation through legislative amendment. In the absence of legislative correction, the case for overturning decisions is even less compelling.

The Court should offer additional direction on reasonableness review so that judges can provide careful and meaningful oversight of the administrative justice system while respecting its legitimacy and the perspectives of its front‑line, specialized decision-makers. However, rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the Court’s prior jurisprudence. The majority’s multi‑factored, open‑ended list of constraints on administrative decision making will encourage reviewing courts to dissect administrative reasons in a line‑by‑line hunt for error. These constraints may function in practice as a wide‑ranging catalogue of hypothetical errors to justify quashing an administrative decision. Structuring reasonableness review in this fashion effectively imposes on administrative decision-makers a higher standard of justification than on trial judges. Such an approach undercuts deference. Reasonableness review should instead focus on the concept of deference to administrative decision-makers and to the legislative intention to confide in them a mandate. Curial deference is thehallmark of reasonableness review, setting it apart from the substitution of opinion permitted under correctness.

Deference imposes three requirements on courts conducting reasonableness review. First, deference is the attitude a reviewing court must adopt towards an administrative decision-maker. Deference mandates respect for the legislative choice to entrust a decision to administrative actors rather than to the courts, for the important role that administrative decision-makers play, and for their specialized expertise and the institutional setting in which they operate. Reviewing courts must pay respectful attention to the reasons offered for an administrative decision, make a genuine effort to understand why the decision was made, and give the decision a fair and generous construction. Second, deference affects how a court frames the question it must answer and the nature of its analysis. A reviewing court does not ask how itwould have resolved an issue, but rather whether the answer provided by the decision-maker was unreasonable. Ultimately, whether an administrative decision is reasonable depends on the context, and a reviewing court must be attentive to all relevant circumstances, including the reasons offered to support the decision, the record, the statutory scheme and the particular issues raised, among other factors. Third, deferential review impacts how a reviewing court evaluates challengesto a decision. The party seeking judicial review bears the onus of showing that the decision was unreasonable; the decision-maker does not have to persuade the court that its decision is reasonable.

The administrative decision itself is the focal point of the review exercise. In all cases, the question remains whether the challenging party has demonstrated that a decision is unreasonable. Where reasons are neither required nor available, reasonableness may be justified by past decisions of the administrative body or in light of the procedural context. Where reasons are provided, they serve as the natural starting point to determine whether the decision-maker acted reasonably. By beginning with the reasons, read in light of the surrounding context and the grounds raised, reviewing courts provide meaningful oversight while respecting the legitimacy of specialized administrative decision making. Reviewing courts should approach the reasons with respect for the specialized decision-makers, their significant role and the institutional context chosen by the legislator. Reviewing courts should not second‑guess operational implications, practical challenges and on‑the‑ground knowledge and must remain alert to specialized concepts or language. Further, a reviewing court is not restricted to the four corners of the written reasons and should, if faced with a gap in the reasons, look to other materials to see if they shed light on the decision, including: the record of any formal proceedings and the materials before the decision-maker, past decisions of the administrative body, and policies or guidelines developed to guide the type of decision under review. These materials may assist a court in understanding the outcome. In these ways, reviewing courts may legitimately supplement written reasons without supplanting the analysis. Reasons must be read together with the outcome to determine whether the result falls within a range of possible outcomes. This approach puts substance over form where the basis for a decision is evident on the record, but not clearly expressed in written reasons.

As well, a court conducting deferential review must view claims of error in context and with caution, cognizant of the need to avoid substituting its opinion for that of those empowered and better equipped to answer the questions at issue. Because judicial substitution is incompatible with deference, reviewing courts must carefully evaluate the challenges raised to ensure they go to the reasonablenessof the decision rather than representing a mere difference of opinion. Courts must also consider the materiality of any alleged errors. An error that is peripheral to the reasoning process is not sufficient to justify quashing a decision. The same deferential approach must apply with equal force to statutory interpretation cases. In such cases, a court should not assess the decision by determining what, in its own view, would be a reasonable interpretation. Such an approach imperils deference. A de novo interpretation of a statute necessarily omits the perspective of the front‑line, specialized administrative body that routinely applies the statutory scheme in question. By placing that perspective at the heart of the judicial review inquiry, courts display respect for specialization and expertise, and for the legislative choice to delegate certain questions to non‑judicial bodies. Conversely, by imposing their own interpretation of a statute, courts undermine legislative intent.

In the instant case, there is agreement with the majority that the standard of review is reasonableness. The Registrar’s reasons failed to respond to V’s submission that the objectives of s. 3(2)(a) of the Citizenship Act require its terms to be read narrowly. Instead, the Registrar interpreted s. 3(2)(a) broadly, based on a purely textual assessment. This reading was only reasonable if the text is read in isolation from its objective. Nothing in the history of this provision indicates that Parliament intended to widen its scope. Furthermore, the judicial treatment of this provision also points to the need for a narrow interpretation. In addition, the text of s. 3(2)(c) can be seen as undermining the Registrar’s interpretation of s. 3(2)(a), because the former denies citizenship to children born to individuals who enjoy diplomatic privileges and immunities equivalent to those granted to persons referred to in the latter. This suggests that s. 3(2)(a) covers only those employees in Canada of a foreign government who have such privileges and immunities, in contrast with V’s parents. By ignoring the objectives of s. 3 as a whole, the Registrar’s decision was unreasonable.

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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons for Judgment: The Court

I: Introduction: 0:00:22, paragraphs 1 to 8

II: Factual History: 0:04:21, paragraphs 9 to 12

III: Judicial History: 0:06:21, paragraphs 13 to 21

IV: Issues: 0:10:46, paragraph 22

V: Analysis: 0:11:12

V(A): Did the Trial Judge Err in Departing From Binding Precedent and Providing His Own Interpretation of Section 121 of the Constitution Act, 1867?: 0:11:14, paragraphs 23 to 43

V(B): What Is the Proper Interpretation of Section 121?: 0:21:01, paragraphs 44 to 45

V(B)(1): “Admitted Free”: the Competing Interpretations: 0:22:03, paragraphs 46 to 53

V(B)(2): Text: 0:26:01, paragraph 54

V(B)(3): Historical Context: 0:26:36, paragraphs 55 to 67

V(B)(4): Legislative Context: 0:32:11, paragraphs 68 to 76

V(B)(5): Foundational Principles: 0:37:19, paragraphs 77 to 88

V(B)(6): Defining the Ambit of Section 121: The Jurisprudence: 0:44:40, paragraphs 89 to 116

VI: Application: 1:03:32, paragraphs 117 to 126

VII: Conclusion: 1:09:44, paragraphs 127 to 128

Headnote provided by the Supreme Court of Canada:

Together with other provisions of the New Brunswick Liquor Control Act, s. 134(b) makes it an offence to “have or keep liquor” in an amount that exceeds a prescribed threshold purchased from any Canadian source other than the New Brunswick Liquor Corporation. C is a resident of New Brunswick who entered Quebec, visited three different stores, and purchased quantities of alcohol in excess of the applicable limit. Returning from Quebec to New Brunswick, C was stopped by the RCMP; he was charged under s. 134(b) and was issued a fine. C challenged the charge on the basis that s. 121 of the Constitution Act, 1867 — which provides that all articles of manufacture from any province shall be “admitted free” into each of the other provinces — renders s. 134(b) unconstitutional. The trial judge found s. 134(b) to be of no force and effect against C and dismissed the charge. The Court of Appeal dismissed the Crown’s application for leave to appeal.

Held: The appeal should be allowed. Section 134(b) of the Liquor Control Act does not infringe s. 121 of the Constitution Act, 1867.

Common law courts are bound by authoritative precedent. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. A legal precedent may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Not only is the exception narrow, it is not a general invitation to reconsider binding authority on the basis of any type of evidence. For a binding precedent from a higher court to be cast aside, the new evidence must fundamentally shift how jurists understand the legal question at issue.

This high threshold was not met in this case. The trial judge relied on evidence presented by an historian whom he accepted as an expert. The trial judge accepted the expert’s description of the drafters’ motivations for including s. 121 in the Constitution Act, 1867, and the expert’s opinion that those motivations drive how s. 121 is to be interpreted. Neither class of evidence constitutes evolving legislative and social facts or a comparable fundamental shift; the evidence is simply a description of historical information and one expert’s assessment of that information. The trial judge’s reliance on the expert’s opinion of the correct interpretation of s. 121 was erroneous. To depart from precedent on the basis of such opinion evidence is to cede the judge’s primary task to an expert. And to rely on such evidence to rebut stare decisis is to substitute one expert’s opinion on domestic law for that expressed by appellate courts in binding judgments. This would introduce the very instability in the law that the principle of stare decisis aims to avoid.

The modern approach to statutory interpretation provides a guide for determining how “admitted free” in s. 121 should be interpreted. The text of the provision must be read harmoniously with the context and purpose of the statute. Constitutional texts must be interpreted in a broad and purposive manner and in a manner that is sensitive to evolving circumstances. Applying this framework to s. 121, the text, historical context, legislative context, and underlying constitutional principles do not support the contention that s. 121 should be interpreted as prohibiting any and all burdens on the passage of goods over provincial boundaries, essentially imposing an absolute free trade regime within Canada. Rather, these considerations support a flexible, purposive view of s. 121 — one that respects an appropriate balance between federal and provincial powers.

With respect to the text of s. 121, the phrase “admitted free” is ambiguous, and falls to be interpreted on the basis of the historical, legislative and constitutional contexts. To achieve economic union, the framers of the Constitution agreed that individual provinces needed to relinquish their tariff powers. The historical context supports the view that, at a minimum, s. 121 prohibits the imposition of charges on goods crossing provincial boundaries — tariffs and tariff‑like measures. But the historical evidence nowhere suggests that provinces would lose their power to legislate under s. 92 of the Constitution Act, 1867for the benefit of their constituents even if that might have impacts on interprovincial trade.

As well, the legislative context of s. 121 indicates that it was part of a scheme that enabled the shifting of customs, excise, and similar levies from the former colonies to the Dominion; that it should be interpreted as applying to measures that increase the price of goods when they cross a provincial border; and that it should not be read so expansively that it would impinge on legislative powers under ss. 91 and 92 of the Constitution Act, 1867.

In addition, foundational principles underlying the Constitution may aid in its interpretation. In this case, the federalism principle is vital. It recognizes the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction and requires a court interpreting constitutional texts to consider how different interpretations impact the balance between federal and provincial interests. Reading s. 121 to require full economic integration would significantly undermine the shape of Canadian federalism, which is built upon regional diversity within a single nation. The need to maintain balance embodied in the federalism principle supports an interpretation of s. 121 that prohibits laws directed at curtailing the passage of goods over interprovincial borders, but allows legislatures to pass laws to achieve other goals within their powers, even though the laws may have the incidental effect of impeding the passage of goods over interprovincial borders.

The lines of jurisprudential authority about the ambit of s. 121 can be distilled into two related propositions. First, the purpose of s. 121 is to prohibit laws that in essence and purpose restrict or limit the free flow of goods across the country. Second, laws that pose only incidental effects on trade as part of broader regulatory schemes not aimed at impeding trade do not have the purpose of restricting interprovincial trade and hence do not violate s. 121. Therefore, s. 121 does not catch burdens on goods crossing provincial borders that are merely incidental effects of a law or scheme aimed at some other purpose. To prohibit incidental impacts on cross‑border trade would allow s. 121 to trump valid exercises of legislative power, and create legislative hiatuses where neither level of government could act.

It follows that a claimant alleging that a law violates s. 121 must establish that the law in essence and purpose restricts trade across a provincial border. The law must impact the interprovincial movement of goods like a tariff, which, in the extreme, could be an outright prohibition. The claimant must establish that the law imposes an additional burden on goods by virtue of them coming in from outside the province. And, restriction of cross‑border trade must be the primary purpose of the law, thereby excluding laws enacted for other purposes, such as laws that form rational parts of broader legislative schemes with purposes unrelated to impeding interprovincial trade.

In this case, s. 134(b) impedes liquor purchases originating anywhere other than the New Brunswick Liquor Corporation. In essence, it functions like a tariff, even though it may have other purely internal effects. However, the text and effects are aligned and suggest the primary purpose of s. 134(b) is not to impede trade, but rather to restrict access to any non‑Corporation liquor, not just liquor brought in from another province. The objective of the New Brunswick regulatory scheme is not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick. Finally, s. 134(b) is not divorced from the objective of the larger scheme. It plainly serves New Brunswick’s choice to control the supply and use of liquor within the province. The primary purpose of s. 134(b) is to prohibit holding excessive quantities of liquor from supplies not managed by the province. While one effect of s. 134(b) is to impede interprovincial trade, this effect is only incidental in light of the objective of the provincial scheme in general. Therefore, while s. 134(b) in essence impedes cross‑border trade, this is not its primary purpose. Section 134(b) does not infringe s. 121 of the Constitution Act, 1867.

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View Details

See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

Listen on 1.25x, 1.5x, 1.75x, or 2x playback speeds for faster “reading”.

The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons for Judgment: McLachlin C.J. (Binnie, Fish and Charron JJ. concurring)

I: Introduction: 0:00:27, paragraphs 1 to 10

II: The Legislation: 0:05:44, paragraphs 11 to 14

III: The Issues: 0:08:37, paragraph 15

IV: Analysis: 0:08:59

IV(A): The Validity of the Legislative Scheme as a Whole: 0:09:02, paragraphs 16 to 18

IV(A)(1): Characterizing the Legislative Scheme: 0:10:52, paragraphs 19 to 34

IV(A)(2): Does the Matter of the Act Come Within Section 91(27)?: 0:20:05, paragraphs 35 to 38

IV(A)(3): Does the Act Serve a Valid Criminal Law Purpose?: 0:23:11, paragraphs 39 to 48

IV(A)(3)(a): Morality: 0:28:48, paragraphs 49 to 51

IV(A)(3)(b): Health: 0:30:14, paragraphs 52 to 57

IV(A)(3)(c): Security: 0:33:41, paragraph 58

IV(A)(3)(d): Is the Legislative Scheme Grounded in a Valid Criminal Law Purpose?: 0:34:32, paragraphs 59 to 77

IV(B): Do the Prohibitions in Sections 8 to 13 of the Act Constitute Valid Criminal Law?: 0:44:16, paragraphs 78 to 88

IV(B)(1): Section 8: 0:49:36, paragraphs 89 to 90

IV(B)(2): Section 9: 0:50:37, paragraphs 91 to 92

IV(B)(3): Section 10: 0:51:31, paragraphs 93 to 105

IV(B)(4): Section 11: 1:00:31, paragraphs 106 to 109

IV(B)(5): Section 12: 1:02:02, paragraphs 110 to 112

IV(B)(6): Section 13: 1:03:39, paragraphs 113 to 121

IV(B)(7): Summary: 1:07:42, paragraphs 122 to 123

IV(C): Are the Administrative Provisions of the Act (Sections 14 to 61 and 65 to 68) Ancillary to the Prohibition Regime in Sections 5 to 13?: 1:08:08, paragraphs 124 to 140

IV(C)(1): Sections 14 to 19: 1:17:59, paragraphs 141 to 146

IV(C)(2): Sections 20 to 59 and 65 to 67: 1:21:22, paragraphs 147 to 151

IV(C)(3): Equivalency Provisions: 1:24:10, paragraphs 152 to 154

IV(C)(4): Sections 60 and 61: 1:25:17, paragraph 155

V: Conclusion: 1:25:32, paragraphs 156 to 158

Joint Reasons for Judgment: LeBel and Deschamps JJ. (Abella and Rothstein JJ. concurring)

I: Introduction: 1:27:53, paragraph 159

II: History of the Assisted Human Reproduction Act: 1:28:32, paragraphs 160 to 163

III: Structure and Content of the Assisted Human Reproduction Act: 1:30:36, paragraphs 164 to 177

IV: Positions of the Parties: 1:40:19, paragraphs 178 to 179

V: Opinion of the Quebec Court of Appeal, 2008 QCCA 1167, 298 D.L.R. (4th) 712: 1:42:42, paragraphs 180 to 181

VI: Applicable Constitutional Principles and Doctrines: 1:44:23, paragraphs 182 to 197

VII: Applicable Constitutional Principles and Doctrines: 1:57:04, paragraph 198

VII(A): Pith and Substance of the Impugned Provisions: 1:57:32, paragraphs 199 to 201

VII(A)(1): Purpose of the Provisions: 1:59:24, paragraphs 202 to 217

VII(A)(2): Effect of the Provisions: 2:11:34, paragraphs 218 to 227

VII(B): Connecting the Pith and Substance of the Provisions With Heads of Power: 2:18:15, paragraphs 228 to 229

VII(B)(1): Scope of the Federal Criminal Law Power: 2:19:13, paragraphs 230 to 246

VII(B)(2): Lack of a Connection Between the Pith and Substance of the Impugned Provisions and the Federal Criminal Law Power: 2:33:10, paragraphs 247 to 258

VII(B)(3): Connection With Provincial Powers: 2:41:03, paragraphs 259 to 273

VII(C): The Ancillary Powers Doctrine Does Not Apply: 2:53:18

VII(C)(1): Integration With a Valid Statute: 2:53:22, paragraph 274

VII(C)(2): Assessment of the Overflow: 2:54:27, paragraph 275

VII(C)(3): Absence of a Necessary Connection: 2:54:59, paragraphs 276 to 280

VIII: Conclusion: 2:57:49, paragraph 281

Reasons for Judgment: Cromwell J.

2:58:12, paragraphs 282 to 294

Headnote provided by the Supreme Court of Canada:

In 1989, the federal government established the Royal Commission on New Reproductive Technologies (the “Baird Commission”) to study assisted human reproduction. In its report, the Baird Commission expressed concern about certain practices in the field and pressed for legislation. Between 1993 and 1995, the federal government consulted with the provinces, the territories and independent groups for advice on the issue, and the result was the passage of the Assisted Human Reproduction Act in 2004. The Act contains prohibitions and other provisions designed to administer and enforce them. It is set up as follows:

(1) Sections 5 to 9 prohibit human cloning, the commercialization of human reproductive material and the reproductive functions of women and men, and the use of in vitro embryos without consent. (2) Sections 10 to 13 prohibit various activities unless they are carried out in accordance with regulations made under the Act, under licence and in licensed premises. These “controlled activities” involve manipulation of human reproductive material or in vitro embryos, transgenic engineering and reimbursement of the expenditures of donors and surrogate mothers. (3) Sections 14 to 19 set up a system of information management related to assisted reproduction. (4) Sections 20 to 39 establish the Assisted Human Reproduction Agency of Canada. (5) Sections 40 to 59 charge the Agency with administering and enforcing the Act and regulations, and authorize it to issue licences for certain activities related to assisted reproduction. (6) Sections 60 and 61 provide for penalties, (7) ss. 65 to 67 authorize the promulgation of regulations, and (8) s. 68 gives the Governor in Council power to exempt the operation of certain provisions if there are equivalent provincial laws in force that cover the field.

The Attorney General of Quebec accepted that some of the provisions were valid criminal law, but challenged the constitutionality of the balance of the Act in a reference to the Quebec Court of Appeal. According to the Attorney General of Quebec, ss. 8 to 19, 40 to 53, 60, 61 and 68 are attempts to regulate the whole sector of medical practice and research related to assisted reproduction, and are ultra vires the federal government. The Quebec Court of Appeal held that the impugned sections were not valid criminal law since their pith and substance was the regulation of medical practice and research in relation to assisted reproduction.

Held: The appeal should be allowed in part.

Sections 8, 9, 12, 19 and 60 of the Act are constitutional.

Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5), and 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867.

Sections 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68 are constitutional to the extent that they relate to constitutionally valid provisions.

Per McLachlinC.J. and Binnie, Fish and Charron JJ.: The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration. While the Act will have beneficial effects and while some of its effects may impact on provincial matters, neither its dominant purpose nor its dominant effect is to set up a regime that regulates and promotes the benefits of artificial reproduction. The fact that the Baird Commission may have referred to positive aspects of assisted reproduction technology in its report does not establish that these benefits were the focus of Parliament’s efforts. Furthermore, while the Act employs both a penal and regulatory form, Parliament may validly employ regulations as part of a criminal law provided it targets a legitimate criminal law purpose.

Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the federal power over criminal law. The dominant purpose and effect of the legislative scheme is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction. While this initiative necessarily touches on provincial jurisdiction over medical research and practice, these fields are the subject of overlapping federal and provincial jurisdiction. Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers. The Act seeks to avert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants. Overlapping with the morality concerns are concerns for public health and security which may be properly targeted by criminal law. These are valid criminal law purposes.

The prohibitions in ss. 8 to 13 come within the scope of the federal criminal law power and are valid criminal law. The provisions are related to ss. 5 to 7, which are conceded to be valid criminal law. Section 8 prohibits the use of reproductive material for the artificial creation of embryos, unless the donor has consented in accordance with the regulations. This relates to the fundamental importance ascribed to human autonomy. Section 9 prohibits persons from obtaining reproductive material from underage donors, except for the purpose of preserving the sperm or ovum or for the purpose of creating a human being that the person reasonably believes will be raised by the donor. This provision seeks to protect vulnerable youth from exploitation and undue pressure. It is an absolute prohibition like ss. 5 to 7, without any accompanying regulations.

Sections 10 and 11 buttress the prohibitions in s. 5. In essence, s. 10 prohibits dealing with human reproductive material without a licence. It targets health risks and moral concerns related to the artificial creation of human life. Section 11 prohibits transgenic engineering unless permitted by the regulations and performed by a licence‑holder. By using a selective prohibition to broaden the absolute prohibitions in s. 5 on the creation of chimeras and hybrid entities, s. 11 recognizes that mixing human and non‑human genetic material can raise moral concerns long before such experiments result in the creation of a new life form. Working together, licensing and regulation provide for enforceable, tailored prohibitions, which leave the provinces free to regulate the beneficial aspects of genetic manipulation.

Section 12 prohibits reimbursement of donors and surrogate mothers except in accordance with the regulations and with a licence. This provision is rooted in the same concerns as ss. 6 and 7, which prohibit the commercialization of reproduction. Section 13 is an absolute prohibition on the performance of licensed activities in unlicensed premises, backed by a penalty. The artificial creation of human life in clandestine facilities would pose serious health risks to those involved. Ensuring that the facilities of assisted human reproduction are properly supervised also relates to Parliament’s moral concerns.

Together with ss. 5 to 7, ss. 8 to 13 form a valid prohibition regime that is consistent with the objectives of the Act as a whole. These provisions contain prohibitions, backed by penalties, and are directed in pith and substance to valid criminal law goals. Although some of the prohibitions impact on the regulation of medical research and practice, the impact is incidental to the legislation’s dominant criminal law purpose and limited to those ends. Furthermore, subject to the Act’s prohibitions, the provinces are free to enact legislation promoting beneficial practices in the field of assisted reproduction.

While not criminal law in pith and substance, the administrative, organizational, and enforcement provisions in ss. 14 to 68 are integrated into the prohibition regime set up by ss. 5 to 13. Some of these ancillary provisions are criminal in nature and do not significantly intrude on provincial powers, such as the provisions for enforcement (ss. 45 to 59), promulgation of regulations (ss. 65 to 67), and imposition of penalties (ss. 60 and 61). The organizational provisions in ss. 20 to 39 are also essentially part of the criminal prohibitions in ss. 5 to 13. The information management provisions in ss. 14 to 19 and the administrative provisions in ss. 40 to 44 represent a minor incursion on provincial powers. They generally fall under the provincial powers over property and civil rights and matters of a merely local or private nature. However, since these are very broad heads of power, the intrusion is less serious. Moreover, the provisions do not purport to create a substantive right, but function merely to assist in enforcing the Act. Without the prohibition regime in ss. 5 to 13, they would serve no purpose. Furthermore, the provisions are designed to supplement, rather than exclude, provincial legislation. Finally, Parliament has a history of administering and enforcing statutes addressing issues of morality, health and security by way of licensing bodies. Since the ancillary provisions constitute a minor incursion on provincial jurisdiction, the rational and functional connection test should be applied to determine whether they are valid under the ancillary powers doctrine.

Sections 14 to 68 support the legislative scheme in a way that is rational in purpose and functional in effect. Sections 14 to 19 define standards of consent and privacy, charge the Agency with managing personal health information, and establish rules for the medical profession. These provisions harness the flow of information, first to deal appropriately with consent and related privacy issues, and second to facilitate compliance with the Act. Sections 40 to 44 relate to the issuance of licences for controlled activities, and are directly related to prohibiting harmful and immoral conduct while excepting beneficial activity. The provisions relating to inspection and enforcement found in ss. 45 to 59 are also part and parcel of the scheme prohibiting immoral and potentially harmful uses of human reproductive material. Sections 60 and 61, which provide penal sanctions, are necessary for criminal law provisions. Finally, s. 68 permits the Governor in Council to declare provisions of the Act inapplicable in a province where a provincial law contains similar provisions, pursuant to an agreement with that province. This provision recognizes the fact that assisted human reproduction is an area of overlapping jurisdiction, and allows provincial schemes to govern exclusively where provincial laws are equivalent to the federal scheme. The ancillary provisions are thus valid under the ancillary powers doctrine.

Per LeBel, Deschamps, Abella and Rothstein JJ.: Sections 8 to 19, 40 to 53, 60, 61 and 68 of the Act exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867. The provisions of the Act concerning controlled activities, namely those involving assistance for human reproduction and related research activities, do not fall under the criminal law power, but belong to the jurisdiction of the provinces over hospitals, property and civil rights, and matters of a merely local nature.

The first step of the constitutional analysis involves identifying the pith and substance (purpose and effects) of the impugned provisions. Those provisions must be considered separately before considering their connection with the other provisions of the Act, since the purposes and effects of a statute’s many provisions can be different. It is also important to identify the pith and substance of the impugned provisions as precisely as possible, since a vague characterization could lead not only to the dilution of and confusion with respect to the constitutional doctrines, but also to an erosion of the scope of provincial powers as a result of the federal paramountcy doctrine. If the pith and substance of the provisions falls within the jurisdiction of the other level of government, it is necessary first to assess the extent of the overflow in light of the purpose of the provisions and to weigh their effects. It must then be determined whether the provisions form part of an otherwise valid statute. Finally, the impugned provisions must be considered in the context of the entire statute in order to determine whether they are sufficiently integrated with the other provisions of the otherwise valid statute. This review must make it possible to establish a relationship between the extent of the jurisdictional overflow and the importance of the provisions themselves within the statute of which they form a part. There are two applicable concepts: functionality and necessity. The more necessary the provisions are to the effectiveness of the rules set out in the part of the statute that is not open to challenge, the greater the acceptable overflow will be. Care must be taken to maintain the constitutional balance of powers at all stages of the constitutional analysis.

In this case, the purpose and the effects of the impugned provisions relate to the regulation of a specific type of health services provided in health‑care institutions by professionals to individuals who for pathological or physiological reasons need help to reproduce. Their pith and substance is the regulation of assisted human reproduction as a health service. In the Act, substantive and formal distinctions are drawn between prohibited activities and controlled activities. This dichotomy appears clearly from Parliament’s statement of principles in s. 2 and from the titles used in the Act itself. Furthermore, whereas the category of controlled activities concerns services that are available to persons in need of assistance because of an inability to reproduce and that are used by professionals who provide the required help, the activities that are prohibited completely do not involve techniques used in assisted human reproduction. The impugned provisions do not have the same purpose as the unchallenged provisions. They were enacted to establish mandatory national standards for assisted human reproduction. As can be seen from the legislative history, this was how Parliament believed that the benefits of assisted human reproductive technologies and related research for individuals, for families and for society in general could be most effectively secured. When it decided to regulate what are called “controlled” activities, Parliament took into account the concerns expressed about the ethical and moral aspects and the safety of assisted reproductive activities. And in so doing it intended to implement a recommendation from the Baird Commission in order to ensure that Canadians could have access to assisted reproduction services. Regarding the activities that are prohibited completely, Parliament responded to what was presented to it as a consensus that they are reprehensible. Those prohibitions are therefore intended to prevent activities and the use of technologies that do not form part of the process of genetic research or assisted human reproduction.

A review of the effects of the provisions of the Act confirms that the impugned scheme seriously affects the practice of medicine and overlaps or conflicts with many Quebec statutes and regulations. The impugned provisions have a direct impact on the relationship between physicians called upon to use assisted reproductive technologies, donors, and patients. Section 8 sets out rules on consent for the removal and use of human reproductive material, even though rules on consent already exist in the Civil Code of Québec. Similarly, s. 12 implicitly authorizes surrogacy contracts, whereas the Code provides that such contracts are null. Moreover, ss. 10, 11, 13, 40(1) and 42 require researchers and physicians who engage in activities related to treatments for infertility to obtain licences from the Federal Agency even though other Quebec legislation already requires them to obtain permits. Sections 14 to 19 establish a system for the management and disclosure of information relating to assisted reproductive activities, but Quebec already has its own rules governing the use of assisted reproductive technologies by health‑care institutions and physicians, and the disclosure of confidential information is also subject to provisions of several Quebec statutes and regulations. Finally, the oversight by the Federal Agency under ss. 45 to 53 duplicates the oversight provided for in other Quebec statutes.

The impugned provisions, viewed from the perspective of their pith and substance, are not connected with the federal criminal law power. The criminal law power does not give Parliament an unconditional right to take action to protect morality, safety and public health. To be connected with this federal head of power, a law or a provision must (1) suppress an evil, (2) establish a prohibition and (3) accompany that prohibition with a penalty. It is not enough to identify a public purpose that would have justified Parliament’s action. That purpose must also involve suppressing an evil or safeguarding a threatened interest. The evil must be real and the apprehension of harm must be reasonable. This requirement constitutes an essential element of the substantive component of the definition of criminal law, and it applies with equal force where the legislative action is based on morality. Recourse to the criminal law power cannot be based solely on concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall under the criminal law. In the case at bar, although a connection can be made between the pith and substance of the absolute prohibitions and a risk of harm, the same cannot be said of the regulation of the other activities and of the regulatory scheme that is established in the Act. Nothing in the record suggests that the controlled activities should be regarded as conduct that is reprehensible or represents a serious risk to morality, safety or public health. A review of all the work of the Baird Commission and the evidence confirms that, where the impugned provisions are concerned, Parliament’s action did not have the purpose of upholding morality and was not based on a reasoned apprehension of harm, but was instead intended to establish national standards for assisted human reproduction.

The impugned provisions represent an overflow of the exercise of the federal criminal law power. Their pith and substance is connected with the provinces’ exclusive jurisdiction over hospitals, property and civil rights, and matters of a merely local nature. The impugned provisions affect rules with respect to the management of hospitals, since Parliament has provided that the Act applies to all premises in which controlled activities are undertaken. Furthermore, the fact that several of the impugned provisions concern subjects that are already governed by the Civil Code of Québec and other Quebec legislation is an important indication that in pith and substance, the provisions lie at the very core of the provinces’ jurisdiction over civil rights and local matters.

Given the extent of the overflow in this case, it cannot be found that an ancillary power has been validly exercised unless the impugned provisions have a relationship of necessity with the rest of the statute. However, the scheme established by the prohibitory provisions does not depend on the existence of the regulatory scheme. As well, it is clear from the legislative history that the prohibitory provisions were in fact always considered to stand alone and that the regulation of certain activities did not depend on the prohibition of other activities. It must be inferred from this that in setting up the regulatory scheme, Parliament’s intention was to enact legislation in relation to a matter outside its jurisdiction.

The provisions pursuant to which the Federal Agency is responsible for implementing the regulatory scheme are purely ancillary and have no independent purpose. They are invalid. Furthermore, the constitutional defects are not remedied by s. 68, which authorizes the Governor in Council to declare certain provisions inapplicable if the federal minister and the government of a province so agree, as the jurisdictional overflow remains just as great as long as regulation of the activities in question remains dependent on the will of the federal government. Finally, if the principle of subsidiarity were to play a role in the case at bar, it would favour connecting the rules in question with the provinces’ jurisdiction over local matters, not with the criminal law power.

Per Cromwell J.: The matter of the impugned provisions is regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction. The matter of the challenged provisions is best classified as relating to the establishment, maintenance and management of hospitals, property and civil rights in the province and matters of a merely local or private nature in the province. Sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5), and 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867. However, ss. 8, 9 and 12 in purpose and effect prohibit negative practices associated with assisted reproduction and fall within the traditional ambit of the federal criminal law power. Similarly, ss. 40(1), (6) and (7), 41 to 43, and 44(1) and (4) set up the mechanisms to implement s. 12 and, to the extent that they relate to provisions of the Act which are constitutional, were properly enacted by Parliament. Sections 45 to 53, to the extent that they deal with inspection and enforcement in relation to constitutionally valid provisions of the Act, are also properly enacted under the criminal law power. The same is true for ss. 60 and 61, which create offences. Section 68 is also constitutional, although its operation will be limited to constitutional sections of the Act. Given that the other provisions establishing the Assisted Human Reproduction Agency of Canada are not contested, there is no constitutional objection to s. 19.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Joint Reasons for Judgment: Binnie and LeBel JJ. (McLachlin C.J. and Fish, Abella and Charron JJ. concurring)

I: Introduction: 0:00:28, paragraphs 1 to 4

II: Facts: 0:03:32, paragraph 5 to 11

III: Judicial History: 0:10:07

III(A): Court of Queen’s Bench of Alberta (2003), 343 A.R. 89, 2003 ABQB 795: 0:10:10, paragraphs 12 to 14

III(B): Court of Appeal of Alberta (McFadyen, Hunt and Berger JJ.A.) (2005), 39 Alta. L.R. (4th) 1, 2005 ABCA 12: 0:12:07, paragraphs 15 to 17

IV: Relevant Statutes and Regulations: 0:13:54, paragraph 18

V: Constitutional Questions: 0:13:59, paragraph 19

VI: Analysis: 0:14:53

VI(A): The Issues: 0:14:55, paragraph 20

VI(B): Principle of Federalism: 0:16:02, paragraph 21 to 24

VI(C): Constitutional Doctrines and How They Interrelate: 0:19:10

VI(C)(1): “Pith and Substance” Doctrine: 0:19:14, paragraphs 25 to 32

VI(C)(2): The Doctrine of Interjurisdictional Immunity and its Sources: 0:25:12, paragraphs 33 to 34

VI(C)(3): The Dominant Tide of Constitutional Interpretation Does Not Favour Interjurisdictional Immunity: 0:27:57, paragraphs 35 to 47

VI(D): A More Restricted Approach to Interjurisdictional Immunity: 0:38:17

VI(D)(1): Impairment Versus Affects: 0:38:22, paragraphs 48 to 49

VI(D)(2): Identification of the “Basic, Minimum and Unassailable” Content of a Legislative Power: 0:41:03, paragraph 50

VI(D)(3): The Vital or Essential Part of an Undertaking: 0:41:52, paragraphs 51 to 53

VI(E): The Interjurisdictional Immunity Case Law Relied on by the Appellants: 0:46:11

VI(E)(1): The Federal Transportation Cases: 0:46:16, paragraphs 54 to 56

VI(E)(2): The Federal Communication Undertakings: 0:48:30, paragraphs 57 to 58

VI(E)(3): The Maritime Law Cases: 0:50:08, paragraph 59

VI(E)(4):The Indian Cases: 0:50:56, paragraphs 60 to 61

VI(E)(5): The Management of Federal Institutions: 0:53:43, paragraphs 62 to 63

VI(E)(6): The Regulation of Federal Companies and Undertakings: 0:54:37, paragraphs 64 to 66

VI(E)(7): Conclusion: 0:57:35, paragraphs 67 to 68

VI(F): Doctrine of Federal Paramountcy: 0:58:24, paragraphs 69 to 75

VI(G): Order of Application of the Constitutional Doctrines: 1:02:36, paragraphs 76 to 78

VI(H): Application to the Facts of this Case: 1:04:22, paragraph 79

VI(H)(1): The Pith and Substance of the Alberta Insurance Act Relates to Property and Civil Rights in the Province: 1:04:37, paragraphs 80 to 82

VI(H)(2): The Onus Lies on the Proponent of Interjurisdictional Immunity on the Facts of a Particular Case to Demonstrate that Credit-Related Insurance Is Part of the Basic, Minimum and Unassailable Content of the Banking Power: 1:06:03, paragraphs 83 to 85

VI(H)(3): Credit-Related Insurance Is Not a Vital or Essential Element of the Banking Undertaking: 1:08:43, paragraphs 86 to 97

VI(H)(4): Federal Paramountcy Does Not Apply on the Facts of this Case: 1:15:44, paragraph 98

VI(H)(4)(a): No Operational Incompatibility: 1:16:14, paragraphs 99 to 100

VI(H)(4)(b): No Frustration of Federal Purpose: 1:17:38, paragraphs 101 to 109

VII: Conclusion: 1:22:53, paragraph 110

Concurring Reasons: Bastarache J.

Introduction: 1:23:50, paragraph 111

I: The Correct Methodological Approach: 1:25:17, paragraphs 112 to 114

II: Application to the Facts: 1:27:48

II(A): The Validity of the Provincial and Federal Laws: 1:27:50, paragraphs 115 to 117

II(B): The Applicability of the Provincial Law: 1:30:56, paragraphs 118 to 123

II(C): The Operability of the Provincial Law: 1:38:18, paragraphs 124 to 128

III: Conclusion: 1:42:40, paragraph 129

Headnote provided by the Supreme Court of Canada:

In 2000, Alberta enacted changes to its Insurance Act purporting to make federally chartered banks subject to the provincial licensing scheme governing the promotion of insurance products. Upon the coming into force of that Act, the appellant banks brought an application for a declaration that their promotion of certain insurance products authorized by theBank Act was banking within the meaning of s. 91(15) of the Constitution Act, 1867 and that the Insurance Act and its associated regulations were constitutionally inapplicable to the banks’ promotion of insurance by virtue of the doctrine of interjurisdictional immunity or, alternatively, inoperative by virtue of the doctrine of federal paramountcy. The trial judge dismissed the application. He found that the challenged provisions of the Insurance Act were valid provincial legislation related to the province’s property and civil rights power under s. 92(13) of the Constitution Act, 1867. He also found that the doctrine of interjurisdictional immunity was inapplicable because the promotion of authorized insurance was not at the core of banking, and that the doctrine of federal paramountcy was inapplicable because there was no operational conflict between the federal and provincial legislation. The Court of Appeal upheld the decision.

Held: The appeal should be dismissed.

Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: The Insurance Act and its associated regulations apply to the banks’ promotion of insurance. The fact that Parliament allows a bank to enter into a provincially regulated line of business such as insurance cannot, by federal statute, unilaterally broaden the scope of an exclusive federal legislative power granted by the Constitution Act, 1867. When promoting insurance, the banks are participating in the business of insurance and only secondarily furthering the security of their loan portfolios. The banks’ claim to interjurisdictional immunity must therefore be rejected, and they have to comply with both federal and provincial laws because the paramountcy doctrine is not engaged in this case. [4]

The resolution of a case involving the constitutionality of legislation in relation to the division of powers must begin with an analysis of the pith and substance of the impugned legislation. This analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the matter to which it essentially relates. If the pith and substance of the impugned legislation can be related to a matter that falls within the jurisdiction of the legislature that enacted it, the courts will declare it intra vires. If, however, the legislation can more properly be said to relate to a matter that is outside the jurisdiction of that legislature, it will be held to be invalid owing to this violation of the division of powers. The corollary to this analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional. At this stage of the analysis, the dominant purpose of the legislation is still decisive. Merely incidental effects will not disturb the constitutionality of an otherwise intra vires law. The pith and substance doctrine is founded on the recognition that it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government. Also, some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. The double aspect doctrine, which applies in the course of a pith and substance analysis, ensures that the policies of the elected legislators of both levels of government are respected. The double aspect doctrine recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various aspects of the matter in question. In certain circumstances, however, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed the doctrines of interjurisdictional immunity and federal paramountcy. [25‑32]

The doctrine of interjurisdictional immunity recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. It is a doctrine of limited application which should be restricted to its proper limit. A broad use of the doctrine would be inconsistent with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote. It is these doctrines that have proved to be most consistent with contemporary views of Canadian federalism, which recognize that overlapping powers are unavoidable. Interjurisdictional immunity should in general be reserved for situations already covered by precedent. This means, in practice, that it will be largely reserved for those heads of power that deal with federal things, persons or undertakings, or where in the past its application has been considered absolutely indispensable or necessary to enable Parliament or a provincial legislature to achieve the purpose for which exclusive legislative jurisdiction was conferred, as discerned from the constitutional division of powers as a whole, or what is absolutely indispensable or necessary to enable an undertaking to carry out its mandate in what makes it specifically of federal (or provincial) jurisdiction. While in theory a consideration of interjurisdictional immunity is apt for consideration after the pith and substance analysis, in practice the absence of prior case law favouring its application to the subject matter at hand will generally justify a court proceeding directly to the consideration of federal paramountcy. [32‑33] [42] [77‑78]

Even in situations where the doctrine of interjurisdictional immunity is properly available, the level of the intrusion on the core of the power of the other level of government must be considered. To trigger the application of the immunity, it is not enough for the provincial legislation simply to affect that which makes a federal subject or object of rights specifically of federal jurisdiction. The difference between “affects” and “impairs” is that the former does not imply any adverse consequence whereas the latter does. In the absence of impairment, interjurisdictional immunity does not apply. It is when the adverse impact of a law adopted by one level of government increases in severity from affecting to impairing that the core competence of the other level of government or the vital or essential part of an undertaking it duly constitutes is placed in jeopardy, and not before. [48‑49]

According to the doctrine of federal paramountcy, when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility. The doctrine applies not only to cases in which the provincial legislature has legislated pursuant to its ancillary power to trench on an area of federal jurisdiction, but also to situations in which the provincial legislature acts within its primary powers, and Parliament pursuant to its ancillary powers. In order to trigger the application of the doctrine, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law. [69‑70] [75]

In the instant case, the pith and substance of the Alberta Insurance Act relates to property and civil rights in the province under s. 92(13) of the Constitution Act, 1867, and is a valid provincial law. The mere fact that the banks now participate in the promotion of insurance does not change the essential nature of the insurance activity, which remains a matter generally falling within provincial jurisdiction. [80‑81]

The banks did not demonstrate that credit‑related insurance is part of the basic, minimum and unassailable content of the banking power. While banking certainly includes the securing of loans by appropriate collateral, a bank in promoting optional insurance is not engaged in an activity vital or essential to banking. There is a difference between requiring collateral (a banking activity) and promoting the acquisition of a certain type of product that could then be used as collateral. The rigid demarcation sought by the banks between federal and provincial regulations would not only risk a legal vacuum, but also deny to lawmakers at both levels of government the flexibility to carry out their respective responsibilities. Furthermore, while s. 416(1) of the Bank Act allows bank corporations to engage in some insurance activities, it recognizes insurance as a business separate from banking. The banks themselves do not consider the insurance to be vital to their credit granting since apart from s. 418 mortgages, the loan agreement is not, in practice, made contingent on obtaining insurance. The bank cannot therefore be protected from operation of the Insurance Act by virtue of the doctrine of interjurisdictional immunity. [85‑86] [89‑92]

The doctrine of federal paramountcy is also inapplicable because neither operational incompatibility nor the frustration of a federal purpose have been made out. Since 2000, the banks have been promoting insurance in Alberta while complying with both the federal Bank Act and the provincial Insurance Act. This is not a case where the provincial law prohibits what the federal law permits. The federal legislation is permissive not exhaustive, and compliance by the banks with the provincial law complements, not frustrates, the federal purpose. [4] [98‑100] [103]

Per Bastarache J.: All constitutional legal challenges to legislation should follow the same approach. First, the pith and substance of the provincial law and the federal law should be examined to ensure that they are both validly enacted laws and to determine the nature of the overlap, if any, between them. Second, the applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity. Third, only if both the provincial law and the federal law have been found to be valid pieces of legislation, and only if the provincial law is found to be applicable to the federal matter in question, then both statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy. [112]

The Insurance Act is clearly a law in pith and substance about the regulation of the insurance industry within the province, and the particular provisions at issue are concerned with the licensing and regulation of insurance providers, promoters and agents. The provincial law applies to all persons providing or promoting insurance services, including banks. It is therefore valid legislation of general application enacted under the provincial legislative authority over property and civil rights in the province under s. 92(13) of the Constitution Act, 1867. As for the validity of the 1991 amendments to the Bank Act, they were not challenged by the parties. [116‑117]

The federal head of power in issue here is “banking” under s. 91(15) of the Constitution Act, 1867. While deposit taking, credit granting in the form of loans and the taking of security for those loans are core elements of banking, clearly, the promotion of authorized insurance does not fall within that core because it is not essential to the function of banking. Insurance can never be security; it is rather the collateral created in relation to the granting of a bank loan. The insurance promoted is optional and can be cancelled at any time. In enacting the amendments to the Bank Act, Parliament intended banks to promote insurance, not as an expansion of the core of the banking power, but rather as a limited exception to the general prohibition against the promotion of certain lines of insurance. Parliament thereby drew a clear distinction between the business of banking and the business of insurance. Since the promotion of insurance does not come within the core of banking, the Insurance Act is not affecting that core in any important way. Therefore, no immunity arises in the circumstances. [118‑123]

The doctrine of paramountcy does not apply in this case as there is no conflict between the provincial law and the federal law. The interaction between the two statutory schemes is one of harmony and complementarity, rather than frustration of Parliament’s legislative purpose. The aim of the amendments to the Bank Act and the associated regulations was to permit the banks to engage in the promotion of authorized insurance products and to spell out the types of products which could be validly promoted, not to set out the precise manner in which the promotion of insurance would be governed and regulated. Conversely, the aim of the provincial legislation was to provide a regulatory scheme for the promotion of insurance, but not to exercise any control over the kinds of insurance that banks may promote, or the extent to which they may do so, thereby maintaining the integrity of Parliament’s legislative purpose. [124] [128]

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Timestamps:

Dissenting Reasons:Rowe J.

Introduction: 0:00:04, paragraphs 457 to 459

I: Federalism and the Division of Powers: 0:02:14, paragraphs 460 to 473

II: POGG Is Residual and Circumscribed: 0:08:22, paragraphs 474 to 478

II(A): A Close Reading of Sections 91 and 92: 0:11:34, paragraph 479

II(A)(1): POGG Is Residual to Section 92: 0:12:05, paragraphs 480 to 484

II(A)(2): POGG Should Be Understood as Residual to the Enumerated Heads of Section 91: 0:15:48, paragraphs 485 to 491

II(A)(3): The Parallel Structure of the Provincial and Federal Residual Clauses Supports a Narrow Understanding of POGG: 0:18:46, paragraphs 492 to 498

II(B): A Close Reading of the Case Law: 0:22:44, paragraphs 499 to 500

II(B)(1): The Early Development of the POGG Power: 0:24:06, paragraphs 501 to 508

II(B)(2): The Modern Development of the POGG Power and the “National Concern” Test from Crown Zellerbach: 0:28:44, paragraphs 509 to 528

II(B)(3): Going Forward: 0:41:05, paragraphs 529 to 534

III: The National Concern Doctrine: 0:44:11

III(A): Singleness, Distinctiveness, Indivisibility: 0:44:15, paragraphs 535 to 539

III(A)(1): Importance Is Irrelevant: 0:47:29, paragraph 540

III(A)(2): Distinctiveness: 0:48:17, paragraphs 541 to 544

III(A)(3): Singleness and Indivisibility: 0:49:47, paragraphs 545 to 549

III(B): Provincial Inability: 0:52:42, paragraphs 550 to 553

III(B)(1): Extra‑Provincial Effects Are Relevant to, But Not Determinative of, Provincial Inability: 0:54:04, paragraphs 554 to 557

III(B)(2): Provincial Inability Is Relevant to, But Not Determinative of, “Singleness, Distinctiveness and Indivisibility”: 0:56:38, paragraphs 558 to 560

III(C): Scale of Impact: 0:58:49, paragraphs 561 to 574

III(D): Conclusion: 1:08:55, paragraph 575

IV: The Attorney General of Canada’s Expansive Approach Lacks Caution: 1:09:15, paragraph 576

IV(A): Becoming a Matter of National Concern: 1:10:38, paragraphs 577 to 578

IV(B): Singleness, Distinctiveness and Indivisibility: 1:12:17, paragraphs 579 to 587

IV(C): Scale of Impact: 1:18:27, paragraphs 588 to 594

V: The Constitutionality of Regulations Made Under the Act Are a Matter for Another Day: 1:21:41, paragraph 595

V(A): Regulations Purportedly Enacted Under a Constitutional Act Can Be Unconstitutional: 1:22:48, paragraphs 596 to 599

V(B): Methodology for Evaluating the Constitutionality of Regulations: 1:25:59, paragraphs 600 to 607

V(C): Empowering Provisions Under the Act: 1:31:32, paragraph 608

V(C)(1): Part 1: 1:31:54, paragraphs 609 to 611

V(C)(2): Part 2: 1:34:50, paragraphs 612 to 615

VI: Conclusion: 1:36:54, paragraph 616

Headnote provided by the Supreme Court of Canada:

In 2018, Parliament enacted the Greenhouse Gas Pollution Pricing Act (“GGPPA”). The GGPPA comprises four parts and four schedules. Part 1 establishes a fuel charge that applies to producers, distributors and importers of various types of carbon-based fuel. Part 2 sets out a pricing mechanism for industrial greenhouse gas (“GHG”) emissions by large emissions-intensive industrial facilities. Part 3authorizes the Governor in Council to make regulations providing for the application of provincial law concerning GHG emissions to federal works and undertakings, federal land and Indigenous land located in that province, as well as to internal waters located in or contiguous with the province. Part 4 requires the Minister of the Environment to prepare an annual report on the administration of the GGPPA and have it tabled in Parliament.

Saskatchewan, Ontario and Alberta challenged the constitutionality of the first two parts and the four schedules of the GGPPA by references to their respective courts of appeal, asking whether the GGPPA is unconstitutional in whole or in part. In split decisions, the courts of appeal for Saskatchewan and Ontario held that the GGPPA is constitutional, while the Court of Appeal of Alberta held that it is unconstitutional. The Attorney General of British Columbia, who had intervened in the Court of Appeal of Alberta, the Attorney General of Saskatchewan and the Attorney General of Ontario now appeal as of right to the Court.

Held (Côté J. dissenting in part and Brown and Rowe JJ. dissenting): The appeals by the Attorney General of Saskatchewan and the Attorney General of Ontario should be dismissed, and the appeal by the Attorney General of British Columbia should be allowed. The reference questions are answered in the negative.

Per Rowe J.(dissenting): The national concern doctrine is a residual power of last resort. Faithful adherence to the doctrine leads inexorably to the conclusion that the national concern branch of the POGG power cannot be the basis for the constitutionality of the Greenhouse Gas Pollution Pricing Act (“Act”). Accordingly, there is agreement with Brown J.’s analysis and with his conclusion that the Act is ultra vires in whole.

Federalism is one of the fundamental underlying principles animating the Canadian Constitution. The primary textual expression of the principle of federalism can be found in the division of powers effected mainly by ss. 91 and 92 of the Constitution Act, 1867. An essential characteristic of the division of powers is its exhaustiveness, which precludes legislative voids and reconciles parliamentary sovereignty and federalism: it ensures that there is no subject matter which cannot be legislated upon and that Canada, as a whole, is fully sovereign. The exhaustive nature of the division of powers means that matters that do not come within the enumerated classes must fit somewhere. This is dealt with by two residual clauses: one federal, and one provincial. The federal residual clause, the POGG power, comes from the opening words of s. 91 of the Constitution Act, 1867. The provincial residual clause is in s. 92(16), and provides that the provincial legislatures may exclusively make laws relating to matters of “a merely local or private Nature in the Province”. The wording of s. 91 provides textual support for the view that the POGG power is residual to s. 92, as s. 91 confers the power to legislate for peace, order and good government “in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”. Further, every conferral of provincial legislative jurisdiction is qualified by words such as “in the Province”, including s. 92(16). The result is that the POGG power is limited to only those matters that are not of a provincial nature, as the residual scope of the POGG power is narrowed by s. 92(16), which applies to matters that are of a local and private nature even if they do not come within any other enumerated head of power. The scope of s. 92(16) must be interpreted as a counterbalance to the introductory paragraph of s. 91 to reflect the constitutional principle that both Parliament and provincial legislatures must be seen as equals. The POGG power is also residual to the federal heads of power, as the normal process of constitutional interpretation is to rely first on a more specific provision before resorting to a more general one.

Since the POGG power is residual to both the enumerated provincial and federal heads of power, matters that come within enumerated federal or provincial heads of power should be located in those enumerated heads and the POGG power accommodates the matters which do not come within any of the enumerated federal or provincial heads. There is no reason to hold that a matter falls under POGG when it comes within an enumerated head of jurisdiction and it is not possible for a matter to fall both within the POGG power and within a federal enumerated head of power at the same time. If a matter cannot fit within any enumerated head, only then may resort be had to the federal residual clause. This methodology helps ensure that the federal residual power cannot be used as a tool to upset the balance of federalism by stripping away provincial powers.

Courts have long struggled to define the contours of the POGG power in a way that preserves the division of powers. Early POGG cases suffered from a series of twists and turns, with various national concern statements infusing them at various points. The common theme of these cases, however, is that courts rely on POGG to give effect to the exhaustive nature of the division of powers, but courts have always been cautious to guard provincial jurisdiction and ensure POGG does not become a vehicle for federal overreach. The POGG jurisprudence should be read as signaling the existence of just two branches: a general residual power and the emergency power. What some commentators have named “gap” and “national concern” are simply manifestations of the exhaustive nature of the division of powers, and the residual nature of the POGG power. Matters that do not come within any enumerated head of power or cannot be distributed among multiple heads of power must fit somewhere, and they belong under POGG when they pass the test set out in Crown Zellerbach. However, the analysis of the Crown Zellerbach framework would be the same even if there is only one residual authority (POGG) and even if there are three branches to POGG.

The national concern doctrine, when properly applied, plays an essential role in achieving the goal that the division of powers be collectively exhaustive, in a way that respects provincial jurisdiction. Matters that do not come within one of the enumerated heads of jurisdiction and that cannot be separated and shared between the enumerated heads of jurisdiction of both orders of government do not fit comfortably within the division of powers. In order to maintain exhaustiveness, such matters fall under the general residual power of Parliament by virtue of their distinctiveness from matters under provincial jurisdiction and their indivisibility between various heads of jurisdiction. But when the national concern doctrine is improperly applied, POGG ceases to be residual in nature. When that is so, it can become an instrument to enhance federal and correspondingly decrease provincial authority. Courts must be careful in recognizing matters of national concern, because the national concern branch has great potential to upset the division of powers. Once a matter is qualified as of national concern, Parliament has exclusive jurisdiction over the matter, including its intra-provincial aspects. Thus, an expansive interpretation of the doctrine can threaten the fundamental structure of federalism and unduly restrain provincial legislature’s law-making authority. It would allow Parliament to acquire exclusive jurisdiction over matters that fall squarely within provincial jurisdiction and flatten regional differences. Courts should never start a division of powers analysis by looking to the federal residual power. To preserve the federal balance, courts should treat POGG as a power of last resort. The scope of the national concern doctrine must be limited to matters that cannot fall under other heads of jurisdiction and that cannot be distributed among multiple heads, thus filling a constitutional gap. Accordingly, the doctrine only applies to matters which are truly of national concern, as opposed to matters of a merely local or private nature that fall under s. 92(16).

The national concern doctrine applies when two conditions are met: first, the matter does not fall within (i.e., it is distinct from) the enumerated heads of jurisdiction and, second, it is single and indivisible. The requirements of singleness, distinctiveness and indivisibility serve the purpose of identifying matters that are truly residual in two ways. The matter must be distinct from provincial matters and must be incapable of division between both orders of government such that it must be entrusted solely to Parliament. These requirements give effect to the general residual power of Parliament under POGG and ensure that there is no jurisdictional gap in the division of powers. They apply to both new matters and to matters which, although originally falling under provincial jurisdiction, have come to extend beyond the powers of the province and, due to indivisibility, must be entrusted exclusively to Parliament.

Given the residual nature of POGG, the importance of a matter has nothing to do with whether it is a matter of national concern. The role of the general residual power is to maintain the exhaustiveness of the division of powers, not to centralize important matters that can be legislated upon by the provinces or by both orders of government. First, the impugned matter must be distinct from matters falling under the enumerated heads of s. 92. This will be met when the matter is beyond provincial reach, including because of the limitation of provincial jurisdiction to matters in the province. This inquiry includes consideration of the provincial residuum: if the matter is of a merely local or private nature, it would fall under s. 92(16). The matter must also be distinct from matters falling under federal jurisdiction, as POGG is purely residual. Second, even if the matter does not come within an enumerated head of power, it must be single and indivisible to fall under POGG rather than an aggregate that can be broken down and distributed to enumerated heads of jurisdiction. The fact that provinces are unable to deal with a matter is insufficient to conclude that it falls under POGG. The nature of the matter must be such that it cannot be shared between both orders of government and that it must be entrusted to Parliament, exclusively, to avoid a jurisdictional vacuum.

In evaluating whether the matter has a singleness, distinctiveness and indivisibility, it is relevant to consider what is known as the provincial inability test, that is, what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspect of the matter. The provincial inability inquiry has been designed to control the centralization of powers and to limit the extension of the national concern doctrine to matters that are beyond the power of the provinces to deal with and that must be legislated upon by Parliament, exclusively. Extra-provincial effects, on their own, are insufficient to satisfy the provincial inability test. Rather, the extra-provincial effects must be such that the matter, or part of the matter, is beyond the powers of the provinces to deal with on their own or in tandem. If the pith and substance of provincial legislation comes within the classes of subjects assigned to the provinces, incidental or ancillary extra-provincial effects are irrelevant to its validity. Evidence that provinces are not cooperating, even combined with the presence of extra-provincial effects, is also insufficient to make out provincial inability. Provinces are sovereign within their sphere of jurisdiction and can legitimately choose different policies than other provinces. Further, provincial inability is no more than an indicium of singleness, distinctiveness and indivisibility. In line with the residual role of POGG, federal authority over what was formerly within provincial competence is only justified where a matter has become distinct from what the provinces can do, and cannot be shared between orders of government because of its indivisibility. In such a case, reliance on POGG is the only way to maintain the exhaustiveness of the division of powers. Otherwise, there would be a jurisdictional void — if the federal Parliament did not have jurisdiction over such a matter, no one would.

When determining if a matter can pass muster as a subject matter falling under POGG, the final consideration is whether it has a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution. The evaluation of the scale of impact on the federal balance illustrates the need for caution when determining whether a new permanent head of exclusive power should, in effect, be added to the federal list of powers. This prong of the test requires courts to determine whether recognizing the proposed new federal power would be compatible with the federal structure. It does not ask whether the importance of the proposed new federal power outweighs the infringement on provincial jurisdiction. Importance is irrelevant because it does not indicate whether there is a jurisdictional gap that must be filled with the general residual power. Important matters can and should be dealt with by the provinces. Courts must also be careful not to let the double aspect doctrine undermine the scale of impact inquiry by suggesting that provinces retain ample means to regulate the matter. The double aspect doctrine recognizes that the same fact situation or matter may possess both federal and provincial aspects, which means that both orders of government can legislate from their respective perspective. This doctrine only applies when a subject matter has multiple aspects, some that may be regulated under provincial jurisdiction, and some under federal jurisdiction. The double aspect doctrine must be applied carefully, since increasing overlap between provincial and federal competence can severely disrupt the federal balance. The combined operation of the doctrines of double aspect and federal paramountcy can have profound implications for the federal structure and for provincial autonomy.

The national concern doctrine must be applied with caution in light of its residual role and its potential to upset the division of powers. If the doctrine is not strictly applied so as to limit it to ensuring that the division of powers is exhaustive, the federal nature of the Constitution would disappear not gradually but rapidly.

Canada’s proposed doctrinal expansion of national concern should be rejected because it departs in a marked and unjustified way from the jurisprudence of the Court and, if adopted, it will provide a broad and open pathway for further incursions into what has been exclusive provincial jurisdiction. In the instant case, Canada’s proposed pith and substance of the Act of “establishing minimum national standards integral to reducing nationwide GHG emissions” has not attained national dimensions. While the seriousness or the immediacy of the threat that climate change poses may be relevant to an argument under the emergency branch, it has no place in the national concern analysis. Furthermore, the distinctiveness requirement is inherently incompatible with the backstop nature of the Act, which contemplates that some or all provinces could implement GHG pricing schemes that accord with standards set (from time to time) by the federal Cabinet, thereby avoiding the triggering of federal intervention. Singleness, distinctiveness and indivisibility should not be collapsed into provincial inability, and provincial inability should not be informed by tests for enumerated heads of power, because this approach fails to give effect to the residual nature of the POGG power.

The device of “minimum national standards” makes wider still the pathway for enhancement of federal jurisdiction. “By means of minimum national standards” could be applied to any matter, and therefore adds nothing to the description of a matter and has no place. Including “minimum national standards” in the matter of national concern short-circuits the analysis and opens the door to federal “minimum standards” with respect to other areas of provincial jurisdiction, artificially expanding federal capacity to legislate in what have been until now matters coming within provincial jurisdiction. This device undermines federalism by replacing provincial autonomy in the exercise of its jurisdiction with the exercise of such jurisdiction made permanently subject to federal supervision. Finally, the Act’s scale of impact on provincial jurisdiction is not reconcilable with the distribution of powers. The Act leaves room for provincial jurisdiction only insofar as the decision of the province conforms to the will of Parliament and the federal Cabinet. It is not an exercise in cooperative federalism; rather, it is the means to enforce supervisory federalism. The problem is not cured by the double aspect doctrine: since the federal matter is defined in terms of the extent to which it can limit the provinces’ discretion to legislate (the backstop mechanism), this is not two aspects of the same fact situation — it is one aspect, and it gives the federal government the upper hand and the final say. Parliament did not have jurisdiction to enact the Act under its general residual power.

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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons Dissenting In Part:Côté J.

Introduction: 0:00:22, paragraphs 222 to 225

I: The GGPPA Vests a Considerable Amount of Discretion in the Executive: 0:02:09, paragraph 226

I(A): Part 1 of the Act: 0:02:22, paragraphs 227 to 231

I(B): Part 2 of the Act: 0:12:40, paragraphs 232 to 235

Ii: “Minimum” Standards Are Set By the Executive, Not the Act: 0:16:42, paragraphs 236 to 240

III: Constitutional Restrictions on Delegated Power: 0:19:59, paragraphs 241 to 242

III(A): The Architecture of the Constitution of Canada: 0:20:57, paragraphs 243 to 261

III(B): Fundamental Principles of the Constitution of Canada: 0:35:23, paragraphs 262 to 263

III(B)(1): Parliamentary Sovereignty: 0:35:46, paragraphs 264 to 269

III(B)(2): The Rule of Law: 0:40:44, paragraphs 270 to 278

III(B)(3): The Separation of Powers: 0:45:34, paragraphs 279 to 293

IV: Conclusion: 0:54:06, paragraphs 294 to 295

Dissenting Reasons:Brown J.

I: Introduction: 0:55:06, paragraphs 296 to 305

II: The Act: 1:02:01, paragraphs 306 to 312

III: Analysis for Constitutionality: 1:07:11, paragraphs 313 to 314

III(A): Characterization: 1:08:39, paragraphs 315 to 316

III(A)(1): Broad Proposed Characterizations: 1:09:22, paragraphs 317 to 320

III(A)(2): Narrow Proposed Characterizations: 1:13:20, paragraphs 321 to 335

III(A)(3): Purpose and Effects: 1:21:47, paragraphs 336 to 340

III(B): Classification: 1:26:33, paragraph 341

III(B)(1): Provincial Jurisdiction: 1:27:04, paragraphs 342 to 351

III(B)(2): The National Concern Branch of POGG: 1:34:07

III(B)(2)(a): Defining the Matter of National Concern: 1:34:11, paragraphs 352 to 370

III(B)(2)(b): Singleness, Distinctiveness and Indivisibility: 1:50:13, paragraph 371

III(B)(2)(b)(i): The Pith and Substance of Each Part Is Not Distinct: 1:51:10, paragraphs 372 to 378

III(B)(2)(b)(ii): “The Reduction of GHG Emissions” Is Not Single or Indivisible: 1:57:54, paragraphs 379 to 386

III(B)(2)(c): Scale of Impact: 2:04:07, paragraphs 387 to 394

III(B)(3): Other Sources of Federal Legislative Authority: 2:09:59, paragraphs 395 to 396

III(B)(3)(a): Gap Branch of POGG: 2:11:03, paragraphs 397 to 398

III(B)(3)(b): Emergency Branch of POGG: 2:12:11, paragraphs 399 to 403

III(B)(3)(c): Criminal Law: 2:16:07, paragraph 404

III(B)(3)(d): Taxation: 2:16:42, paragraphs 405 to 409

III(B)(4): Broad Delegation to the Cabinet: 2:19:03, paragraphs 410 to 414

IV: Canada’s Proposed “Modernization” of Crown Zellerbach: 2:21:32, paragraphs 415 to 427

V: The Majority’s Dilution of Crown Zellerbach: 2:29:07, paragraphs 428 to 429

V(A): “Threshold Question”: Whether the Matter Is of Sufficient Concern to Canada as a Whole: 2:31:10, paragraphs 430 to 433

V(B): Singleness, Distinctiveness and Indivisibility: 2:33:17, paragraph 434

V(B)(1): The First Principle: “A Specific and Identifiable Matter That Is Qualitatively Different From Matters of Provincial Concern”: 2:33:51, paragraphs 435 to 442

V(B)(2): The Second Principle: “Federal Jurisdiction Should Be Found to Exist Only Where the Evidence Establishes Provincial Inability to Deal With the Matter”: 2:38:16, paragraphs 443 to 448

V(C): Scale of Impact: 2:42:32, paragraphs 449 to 453

VI: Conclusion: 2:46:03, paragraphs 454 to 456

Headnote provided by the Supreme Court of Canada:

In 2018, Parliament enacted the Greenhouse Gas Pollution Pricing Act (“GGPPA”). The GGPPA comprises four parts and four schedules. Part 1 establishes a fuel charge that applies to producers, distributors and importers of various types of carbon-based fuel. Part 2 sets out a pricing mechanism for industrial greenhouse gas (“GHG”) emissions by large emissions-intensive industrial facilities. Part 3authorizes the Governor in Council to make regulations providing for the application of provincial law concerning GHG emissions to federal works and undertakings, federal land and Indigenous land located in that province, as well as to internal waters located in or contiguous with the province. Part 4 requires the Minister of the Environment to prepare an annual report on the administration of the GGPPA and have it tabled in Parliament.

Saskatchewan, Ontario and Alberta challenged the constitutionality of the first two parts and the four schedules of the GGPPA by references to their respective courts of appeal, asking whether the GGPPA is unconstitutional in whole or in part. In split decisions, the courts of appeal for Saskatchewan and Ontario held that the GGPPA is constitutional, while the Court of Appeal of Alberta held that it is unconstitutional. The Attorney General of British Columbia, who had intervened in the Court of Appeal of Alberta, the Attorney General of Saskatchewan and the Attorney General of Ontario now appeal as of right to the Court.

Held (Côté J. dissenting in part and Brown and Rowe JJ. dissenting): The appeals by the Attorney General of Saskatchewan and the Attorney General of Ontario should be dismissed, and the appeal by the Attorney General of British Columbia should be allowed. The reference questions are answered in the negative.

Per Côté J. (dissenting in part):There is agreement with the majority with respect to the formulation of the national concern test. There is also agreement that Parliament has the power to enact constitutionally valid legislation establishing minimum national standards of price stringency to reduce GHG emissions. However, the GGPPAis, in its current form, unconstitutional. It cannot be said to accord with the matter of national concern formulated by the majority because the breadth of the discretion that it confers on the Governor in Council results in no meaningful limits on the power of the executive. Minimum standards are set by the executive, not the GGPPA. Additionally, the provisions in the GGPPA that permit the Governor in Council to amend and override the GGPPA violate the Constitution Act, 1867, and the fundamental constitutional principles of parliamentary sovereignty, rule of law and the separation of powers. Clauses that purport to confer on the executive branch the power to nullify or amend Acts of Parliament are unconstitutional.

The GGPPA, as it is currently written, vests inordinate discretion in the executive with no meaningful checks on fundamental alterations of the current pricing scheme. The critical feature of the fuel levy established in Part 1, that being what fuels are covered under the GGPPA, is so open-ended, allowing any substance, if prescribed by the Governor in Council, to fall within the ambit of the fuel charge regime. The operative provisions of Part 1 similarly prescribe vast law-making power to the executive such that the very nature of the regime can be altered. The full breadth of executive powers can be seen most notably within ss. 166 and 168. The only limit whatsoever on the expansive regulation-making powers set out in s. 166 is that, in amending Part 1 of Schedule 1 to modify the list of provinces where the fuel levy is payable, the Governor in Council shall take into account, as the primary factor, the stringency of provincial pricing mechanisms for GHGs (s. 166(3)). No such factor applies to the Governor in Council’s regulation-making powers under Part 1’s provisions, thus, by virtue of s. 166(4), the executive has a wholly-unfettered ability to amend Part 1 of the GGPPA. Sections 168(2) and (3) also allow the Governor in Council to make and amend regulations in relation to the fuel charge system, its application, and its implementation. These wide-ranging powers set forth a wholly-unfettered grant of broad discretion to amend Part 1. Most notably, s. 168(4) states that in the event of a conflict between the statute enacted by Parliament and the regulations made by the executive, the regulation prevails to the extent of the conflict. This breathtaking power circumvents the exercise of law-making power by the legislative branch by permitting the executive to amend by regulation the very statute which authorizes the regulation.

Further, it is clear from a review of Part 2’s provisions that the broad powers accorded to the executive permit the Governor in Council to regulate GHG emissions broadly or regulate specific industries in other ways than by setting GHG emissions limits and pricing excess emissions across the country, despite the majority’s assertion to the contrary. The sole limit on the executive’s expansive discretion found in Part 2, similar to Part 1, is in s. 189(2): when amending Part 2 of Schedule 1 to modify the list of provinces where the output-based pricing system applies, the Governor in Council shall take into account, as the primary factor, the stringency of provincial pricing mechanisms for GHGs. Again, as in Part 1, no such factor applies to the Governor in Council’s regulation-making powers under Part 2’s provisions. There is agreement with Brown and Rowe JJ. that Part 2’s skeletal framework accords the executive vast discretion to unilaterally set standards on an industry-by-industry basis, creating the potential for differential treatment of industries at the executive’s whim.

Therefore, minimum standards are set by the executive, not the GGPPA. Accordingly, the GGPPA cannot be said to establish national standards of price stringency because there is no meaningful limit to the power of the executive. Rather than establishing minimum national standards, Part 2 empowers the executive to establish variable and inconsistent standards on an industry-by-industry basis. The fact that the executive is permitted to place a number of conditions on individuals and industries at any time, and is moreover allowed to revise those conditions at any time to any extent, is untenable. The GGPPA,as it is currently written, employs a discretionary scheme that knows no bounds. While it is agreed that a matter which is restricted to minimum national GHG pricing stringency standards properly fits within federal authority, the GGPPAdoes not reflect this crucial restriction.

Moreover, certain parts of the GGPPA are so inconsistent with our system of democracy that they are independently unconstitutional. Sections 166(2), 166(4) and 192 all confer on the Governor in Council the power to amend parts of the GGPPA. Section 168(4) confers the power to adopt secondary legislation that is inconsistent with Part 1 of the Act. Executive power to amend or repeal provisions in primary legislation raises serious constitutional concerns.

Sections 17 and 91 of the Constitution Act, 1867, both affirm that the authority to legislate is exclusively exercisable by the Queen, with the advice and consent of the Senate and the House of Commons. This means that every exercise of the federal legislative power must have the consent of all three elements of Parliament. The fundamental principles of the Constitution support this reading of ss. 17 and 19.

First, although Parliamentary sovereignty could appear to support Parliament’s ability to delegate whatever they want to whomever they wish, this is not the case. Parliamentary sovereignty contains both a positive and negative aspect. The positive aspect is that Parliament has the ability to create any law. The negative aspect, however, is that no institution is competent to override the requirements of an Act of Parliament. Henry VIII clauses, as found in the GGPPA, run afoul of the negative aspect of parliamentary sovereignty, as they give the executive the authority to override the requirements of primary legislation and create a contradiction within an Act by simultaneously requiring the executive to do something and authorizing the executive to defy that requirement. Henry VIII clauses are also incompatible with the conception of parliamentary sovereignty that demands an impartial, independent and authoritative body to interpret Parliament’s acts, as they limit the availability of judicial review by providing no meaningful limits against which a court could review.

Second, the rule of law, which provides a shield for individuals from arbitrary state action, requires that all legislation be enacted in the manner and form prescribed by law. This includes the requirements that legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. When the Governor in Council amends legislation, it does not follow this prescribed manner and thus violates the rule of law. There are other additional rule of law concerns with the delegation of legislative power to the executive: the delegation of power to amend a statute is generally regarded as objectionable for the reason that the text of the statute is then not to be found in the statute book, which gives rise to confusion and uncertainty; Henry VIII clauses endow the executive with authority to act arbitrarily by permitting it to act contrary to the empowering statute, creating an authority without meaningful limits enforceable through judicial review and thus an absolute discretion; and given that judicial review is constitutionally required, legislation cannot oust review, either expressly or implicitly.

Lastly, the Constitution insists on a separation of powers according to the separation of function among the three branches of government — the legislature, the executive and the judiciary. The executive cannot interfere with the legislative process in a manner that would restrict the power to enact, amend and repeal legislation, despite the important role played by the executive in the legislative process. The separation of powers equally demands that the core function of enacting, amending and repealing statutes be protected from the executive and remain exclusive to the legislature. Doing so supports the two main normative principles underlying the separation of powers: the legislature is the institution best suited to set policy down into legislation, and limiting the power to enact, amend and repeal legislation to the legislature helps to confine power and prevent an even greater concentration of power in the executive. There is nothing more core to the legislative power than legislating. When the executive usurps this function, the separation of powers is clearly violated.

Per Brown J. (dissenting): The Greenhouse Gas Pollution Pricing Act (“Act”)cannot be supported by any source of federal authority, and it is therefore wholly ultra vires Parliament. The Act’s subject matter falls squarely within provincial jurisdiction. The fact that the Act’s structure and operation is premised on provincial legislatures having authority to enact the same scheme is fatal to the constitutionality of the Actunder Parliament’s residual authority to legislate with respect to matters of national concern for the peace, order, and good government of Canada under the Constitution Act, 1867.

There is agreement with Rowe J.’s reasons, and therefore Rowe J.’s review of the jurisprudence on the residual POGG power is adopted. To determine whether an enactment falls within the legislative authority of its enacting body, a reviewing court must apply two steps: first, it must characterize the enactment to determine its pith and substance or dominant subject matter and, secondly, it must classify the identified subject matter, with reference to the classes of subjects or heads of power enumerated in ss. 91 and 92 of the Constitution Act, 1867. Where an enumerated head of power is relied upon, the pith and substance of the impugned law is identified at the characterization step, and that pith and substance is then classified under a head of power or class of subjects. Where Parliament relies upon the national concern branch of POGG as the source of its authority to legislate, the analytical process differs. If it is decided that the pith and substance of the impugned law does not fall under an enumerated head of power, the reviewing court must then consider whether the matter said to be of national concern satisfies the requirements of singleness, distinctiveness and indivisibility as stated in Crown Zellerbach. If so, the matter is placed under exclusive and permanent federal jurisdiction.

The dominant subject matter of an enactment is determined by considering its purpose and effects. The purpose of characterization is to facilitate classification so as to determine whether the Constitution grants the enacting body legislative authority over the subject matter. The legislation’s dominant subject matter must therefore be characterized precisely enough for it to be associated with a specific class of subjects described in the Constitution’s heads of power. If an enactment’s subject matter could be classified under different heads of power listed under both ss. 91 and 92 of the Constitution Act, 1867, then the subject matter should be identified with more precision until it is clear which single level of authority (as between federal and provincial) may legislate in respect thereof.

As a sufficiently precise description may well refer to why and how the law operates, it can be appropriate to include reference to the legislative means in the pith and substance analysis. However, it is not appropriate to do so where describing legislation only in terms of its means would not accurately capture its dominant subject matter or where the description of the means is something that only federal legislative authority can undertake, such as minimum national standards. The determinative consideration in identifying an appropriate level of abstraction should be facilitating the subject matter’s classification among the classes of subjects described in the Constitution’s heads of power so far as necessary to resolve the case.

In this case, describing the Act’s pith and substance as relating to the regulation of GHG emissions is too broad because it does not facilitate classification under a federal or provincial head of power. Greater specificity in describing how the legislation proposes to regulate GHG emissions is required so as to determine whether the Constitution grants Parliament legislative authority over the subject matter. However, the inclusion of minimum national standards in the pith and substance of the Act is equally unhelpful. It adds nothing to the pith and substance of a matter, which is directed not to the fact of a standard, but to the subject matter to which the standard is to be applied. The inclusion of minimum national standards in the pith and substance of a federal statute also effectively decides the jurisdictional dispute, given that only Parliament is capable of imposing minimum national standards ⸺ only federally enacted standards can apply nationwide, and, by operation of paramountcy, only federally enacted standards can be a minimum. Furthermore, reference to “integral” standards also has no relevance to identifying the Act’s pith and substance because such a determination would require the Court to consider whether the standards set out in the Act are effective, which is not a valid consideration in the pith and substance analysis.

In order to characterize the Act’s pith and substance appropriately, its purpose and effects must be determined. In this case, the pith and substance of Parts 1 and 2 of the Actmust be characterized separately. While the two parts share a purpose ⸺ the reduction of GHG emissions ⸺ they are otherwise not remotely similar to each other. They each have distinct operational features and the legislative means they employ are mutually distinct. The pith and substance of Part 1 is the reduction of GHG emissions by raising the cost of fuel. The pith and substance of Part 2 is the reduction of GHG emissions by pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure.

Once identified, the subject matter must be classified, with reference to the classes of subjects or heads of power described in ss. 91 and 92 of the Constitution Act, 1867. Courts should look first to the enumerated powers, rather than immediately considering whether a statute’s dominant subject matter fits within the residual POGG authority.

In this case, provincial jurisdiction over property and civil rights authorized by s. 92(13) stands out as the most relevant source of legislative authority for the pith and substance of Parts 1 and 2 of the Act. Regulating trade and industrial activity, all within the boundaries of specified provinces, is indisputably captured by this broad head of power, which includes the regulation of business not coming within one of the enumerated federal heads of power, as well as the law of property and of contracts. In the alternative, the provincial residuum in s. 92(16), granting authority over all matters of a local or private nature, could also authorize Parts 1 and 2. Part 2, as a deep foray into industrial policy, also falls within matters of provincial legislative authority granted by s. 92(10) over local works and undertakings. Also relevant to Part 2 is s. 92A, which gives the provinces the exclusive jurisdiction to make laws in relation to the exploration, development, conservation and management of non-renewable natural resources in the province.

The identification of several applicable provincial heads of power should be the end of the matter, since all such heads of power are, by the terms of ss. 92 and 92A(1), matters over which the provincial legislatures may exclusively make laws. By the terms of s. 91, the POGG power applies only in relation to matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces. This exclusivity of provincial jurisdiction over matters falling under s. 92 is fundamental to the Canadian brand of federalism, and was a unique and deliberate choice by the makers of the Constitution who were concerned about federal overreach via the POGG power. The federal law‑making authority for the peace, order, and good government of Canada was intended to be subject to the division of powers. Within their areas of legislative authority, provinces are not only sovereign, but exclusively so. The Act’s entire scheme is premised on the provinces having jurisdiction to do precisely what Parliament has presumed to do in the Act ⸺ itoperates only where provincial legislative authority is not exercised, or not exercised in a manner acceptable to the federal Cabinet. The Act’s backstop model is therefore constitutionally impossible: if the provinces have jurisdiction to do what the Act does, then the Actcannot be constitutional under the national concern branch of POGG. This demonstrates that Parliament has legislated in respect of a matter that falls within provincial legislative authority.

Even so, given the majority’s acceptance that some aspect of the Act is truly and distinctly national in scope and lies outside provincial jurisdiction, the question of whether the matter said to be of national concern satisfies the requirements stated in Crown Zellerbach must be considered. The POGG jurisprudence offers little guidance on the question of whether the pith and substance of the impugned legislation can or should be coextensive with the matter of national concern, or whether the matter of national concern can or should be broader than the pith and substance of the legislation. It would be unprecedented and undesirable to accept that the matter of national concern must always be the same as the pith and substance of the statute under review, which can include legislative means, because this would effectively confine Parliament to that particular legislative means in responding to the matter of national concern.

It is not possible for a matter formerly under provincial jurisdiction to be transformed, when minimum national standards are invoked, into a matter of national concern. To accept that allocating national targets or minimum national standards can serve as a basis for recognizing that some aspect of an area of provincial jurisdiction is distinctly national in scope, and therefore lies outside provincial jurisdiction, would be to accept a model of supervisory federalism by which the provinces can exercise their jurisdiction only as long as they do so in a manner that the federal legislation authorizes. This would open up any area of provincial jurisdiction to unconstitutional federal intrusion once Parliament decides to legislate uniform treatment.

In this case, a broad characterization of the national concern is unavoidable in order to encompass the pith and substance of both Part 1 and Part 2. The matter said to be of national concern can therefore be identified as the purpose of the Act as a whole: the reduction of GHG emissions. This matter does not meet the requirements of Crown Zellerbach for a valid national concern: it fails to meet the requirements of singleness and indivisibility. The fact that harms may cross borders is not enough to make out indivisibility. The matter is divisible because GHGs emissions can be connected to the source province. Responsibility for the reduction of GHG emissions among the provinces can therefore be readily identified for regulation at the source of the emissions. Nationwide GHG emissions are nothing more than the sum of provincial and territorial GHG emissions. The reduction of GHG emissions therefore lacks the degree of unity required to qualify as an indivisible matter of national concern. While a provincial failure to deal effectively with the control or regulation of GHG emissions may cause more emissions from that province to cross provincial boundaries, that is insufficient to meet the requirement of indivisibility in Crown Zellerbach.

Even if each of the pith and substance of Parts 1 and 2 as proposed matters of national concern are considered on their own, the pith and substance of each part is not distinct from matters falling under provincial jurisdiction under s. 92; they therefore do not meet the requirements of Crown Zellerbach. The reduction of GHG emissions (whether by raising the cost of fuel, or by pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure) does not have the requisite distinctiveness to be recognized as a matter of national concern because the Actencourages provinces to enact substantially the same scheme to serve the same regulatory purpose. The provinces clearly have jurisdiction to establish standards of GHG price stringency in the province.

The double aspect doctrine has no application in this case. While this doctrine allows for the concurrent application of both federal and provincial legislation, it does not create concurrent jurisdiction. The Act purports to do exactly what the provinces can do, and for precisely the same reason. There are simply no distinctly federal aspects of the reduction of GHG emissions that cannot be divided among the enumerated heads of power. The imposition of minimum national standards cannot be described as the distinctly federal aspect of the matter.

Even were the reduction of GHG emissions a single and indivisible area of jurisdiction, its impact on provincial jurisdiction would be of a scale that is irreconcilable with the division of powers. Because the power to legislate to reduce GHG emissions effectively authorizes an array of regulations and extends to the regulation of any activity that requires carbon-based fuel, it has the potential to undo Canada’s division of powers. GHG emissions simply cannot be treated as a single regulatory matter. While the Act does not forbid any activity, the charges it imposes will affect the cost of fuel and dictate the viability of emissions-intensive trade-exposed activities. These charges thereby stand to have a profound effect on provincial jurisdiction and the division of powers. The division of powers analysis allows no recourse to balancing or proportionality considerations. The Constitution Act, 1867, sets out spheres of exclusive jurisdiction so that within their sphere of jurisdiction, the provincial legislatures are sovereign, which sovereignty connotes provincial power to act or not act as they see fit, not as long as they do so in a manner that finds approval at the federal Cabinet table.

The delegation granted by the Act to the Cabinet is breathtakingly broad. On this point, the guidance provided by Rowe J. is endorsed, both as to the imperative that the division of powers confines the exercise by the federal Cabinet of Parliament’s delegated authority, and as to the appropriate methodology for reviewing regulations for compliance with the division of powers.

The long-established principles set down in Crown Zellerbach should not be departed from. The doctrine of stare decisis establishes a high threshold for departing from precedents and that threshold is not met in this case. There is disagreement with the majority’s modernization of the national concern doctrine and with the three-step framework it adopts, which dilutes the national concern test set down in Crown Zellerbach. The framework adopted results in a new, distinctly hierarchical and supervisory model of Canadian federalism that subjects provincial legislative authority to Parliament’s overriding authority to establish national standards of how such authority may be exercised and replaces the constitutionally mandated division of powers with a judicially struck balance of power, which must account for other interests. No province, and not even Parliament itself, ever agreed to ⸺ or even contemplated ⸺ either of these features. This is a model of federalism that rejects the Constitution and re-writes the rules of Confederation. Its implications go far beyond the Act, opening the door to federal intrusion ⸺ by way of the imposition of national standards ⸺ into all areas of provincial jurisdiction, including intra-provincial trade and commerce, health, and the management of natural resources. It is bound to lead to serious tensions in the federation. And all for no good reason, since Parliament could have achieved its goals in constitutionally valid ways.

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Timestamps:

Reasons for Judgment:Wagner C.J. (Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ. concurring)

I: Overview: 0:00:31, paragraphs 1 to 5

II: Reference Question: 0:03:02, paragraph 6

III: Background: 0:03:13

III(A): The Global Climate Crisis: 0:03:16, paragraphs 7 to 12

III(B): Canada’s Efforts to Address Climate Change: 0:07:28, paragraphs 13 to 22

III(C): Provincial Action on Climate Change: 0:15:36, paragraphs 23 to 24

IV: The GGPPA: 0:17:29, paragraph 25

IV(A): Basic Architecture of the GGPPA: 0:17:36, paragraphs 26 to 27

IV(B): The Preamble: 0:19:32, paragraphs 28 to 29

IV(C): Part 1: Fuel Charge: 0:21:06, paragraphs 30 to 33

IV(D): Part 2: Industrial Greenhouse Gas Emissions: 0:24:44, paragraphs 34 to 38

V: Judicial History: 0:29:42

V(A): Court of Appeal for Saskatchewan, 2019 SKCA 40, 440 D.L.R. (4th) 398: 0:29:45, paragraphs 39 to 40

V(B): Court of Appeal for Ontario, 2019 ONCA 544, 146 O.R. (3d) 65: 0:32:01, paragraphs 41 to 43

V(C): Court of Appeal of Alberta, 2020 ABCA 74, 3 Alta. L.R. (7th) 1: 0:35:06, paragraphs 44 to 46

VI: Analysis: 0:37:41, paragraph 47

VI(A): Principle of Federalism: 0:38:39, paragraphs 48 to 50

VI(B): Characterization of the GGPPA: 0:40:57

VI(B)(1): Overarching Principles: 0:41:01, paragraphs 51 to 56

VI(B)(2): Application to the GGPPA: 0:45:54, paragraph 57

VI(B)(2)(a): Intrinsic Evidence: 0:46:56, paragraphs 58 to 61

VI(B)(2)(b): Extrinsic Evidence: 0:50:58, paragraphs 62 to 69

VI(B)(2)(c): Legal Effects: 0:59:11, paragraphs 70 to 76

VI(B)(2)(d): Practical Effects: 1:07:54, paragraphs 77 to 79

VI(B)(2)(e): Conclusion on Pith and Substance: 1:09:52, paragraphs 80 to 88

VI(C): Classification of the GGPPA: 1:18:55

VI(C)(1): National Concern Doctrine: 1:18:59, paragraphs 89 to 91

VI(C)(1)(a): Origins of the National Concern Doctrine: 1:21:14, paragraphs 92 to 97

VI(C)(1)(b): Early Application of the National Concern Doctrine by the Court: 1:26:57, paragraphs 98 to 100

VI(C)(1)(c): Development of the National Concern Test: 1:28:46, paragraphs 101 to 109

VI(C)(2): Clarifying the National Concern Doctrine: 1:38:25, paragraphs 110 to 113

VI(C)(2)(a): “Matter” of National Concern: 1:41:04, paragraphs 114 to 119

VI(C)(2)(b): Exclusive Federal Jurisdiction Based on the National Concern Doctrine: 1:46:29, paragraphs 120 to 131

VI(C)(3): National Concern Test: 1:54:58, paragraphs 132 to 141

VI(C)(3)(a): Threshold Question: 2:03:00, paragraphs 142 to 144

VI(C)(3)(b): Singleness, Distinctiveness and Indivisibility: 2:04:47, paragraphs 145 to 159

VI(C)(3)(c): Scale of Impact: 2:16:31, paragraphs 160 to 161

VI(C)(3)(d): Summary of the Framework: 2:17:36, paragraphs 162 to 166

VI(C)(4): Application to the GGPPA: 2:19:06

VI(C)(4)(a): Threshold Question: 2:19:10, paragraphs 167 to 171

VI(C)(4)(b): Singleness, Distinctiveness and Indivisibility: 2:22:33, paragraphs 172 to 195

VI(C)(4)(C): Scale of Impact: 2:42:36, paragraphs 196 to 206

VI(C)(4)(d): Conclusion on the National Concern Doctrine: 2:51:05, paragraphs 207 to 211

VII: Validity of the Levies as Regulatory Charges: 2:54:34, paragraphs 212 to 219

VIII: A Final Matter: 3:00:43, paragraph 220

IX: Conclusion: 3:01:32, paragraph 221

Headnote provided by the Supreme Court of Canada:

In 2018, Parliament enacted the Greenhouse Gas Pollution Pricing Act (“GGPPA”). The GGPPA comprises four parts and four schedules. Part 1 establishes a fuel charge that applies to producers, distributors and importers of various types of carbon-based fuel. Part 2 sets out a pricing mechanism for industrial greenhouse gas (“GHG”) emissions by large emissions-intensive industrial facilities. Part 3authorizes the Governor in Council to make regulations providing for the application of provincial law concerning GHG emissions to federal works and undertakings, federal land and Indigenous land located in that province, as well as to internal waters located in or contiguous with the province. Part 4 requires the Minister of the Environment to prepare an annual report on the administration of the GGPPA and have it tabled in Parliament.

Saskatchewan, Ontario and Alberta challenged the constitutionality of the first two parts and the four schedules of the GGPPA by references to their respective courts of appeal, asking whether the GGPPA is unconstitutional in whole or in part. In split decisions, the courts of appeal for Saskatchewan and Ontario held that the GGPPA is constitutional, while the Court of Appeal of Alberta held that it is unconstitutional. The Attorney General of British Columbia, who had intervened in the Court of Appeal of Alberta, the Attorney General of Saskatchewan and the Attorney General of Ontario now appeal as of right to the Court.

Held (Côté J. dissenting in part and Brown and Rowe JJ. dissenting): The appeals by the Attorney General of Saskatchewan and the Attorney General of Ontario should be dismissed, and the appeal by the Attorney General of British Columbia should be allowed. The reference questions are answered in the negative.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: The GGPPA is constitutional. It sets minimum national standards of GHG price stringency to reduce GHG emissions. Parliament has jurisdiction to enact this law as a matter of national concern under the peace, order, and good government (“POGG”) clause of s. 91 of the Constitution Act, 1867.

Federalism is a foundational principle of the Canadian Constitution. Its objectives are to reconcile diversity with unity, promote democratic participation by reserving meaningful powers to the local and regional level and foster cooperation between Parliament and the provincial legislatures for the common good. Sections 91 and 92 of the Constitution give expression to the principle of federalism and divide legislative powers between Parliament and the provincial legislatures. Under the division of powers, broad powers were conferred on the provinces to ensure diversity, while at the same time reserving to the federal government powers better exercised in relation to the country as a whole to provide for Canada’s unity. Federalism recognizes that within their spheres of jurisdiction, provinces have autonomy to develop their societies. Federal power cannot be used in a manner that effectively eviscerates provincial power.

Courts, as impartial arbiters, are charged with resolving jurisdictional disputes over the boundaries of federal and provincial powers on the basis of the principle of federalism. Although early Canadian constitutional decisions by the Judicial Committee of the Privy Council applied a rigid division of federal-provincial powers as watertight compartments, the Court has favoured a flexible view of federalism, best described as a modern cooperative federalism, that accommodates and encourages intergovernmental cooperative efforts. However, the Court has also always maintained that flexibility and cooperation, while important, cannot override or modify federalism and the constitutional division of powers.

The review of legislation on federalism grounds consists of the well-established two-stage analytical approach. At the first stage, a court must consider the purpose and effects of the challenged statute or provision with a view to characterizing the subject matter or “pith and substance”. A court must then classify the subject matter with reference to federal and provincial heads of power under the Constitutionin order to determine whether it is intra vires Parliament and therefore valid.

At the first stage of the division of powers analysis, a court must consider the purpose and effects of the challenged statute or provision in order to identify its “pith and substance” or its main thrust or dominant or most important characteristic. In determining the purpose of the challenged statute or provision, a court can consider both intrinsic evidence, such as the legislation’s preamble or purpose clauses, and extrinsic evidence, such as Hansard or minutes of parliamentary committees. In considering the effects of the challenged legislation, a court can consider both the legal effects, those that flow directly from the provisions of the statute itself, and the practical effects, the side effects that flow from the application of the statute. Where a court is asked to adjudicate the constitutionality of legislation that has been in force for only a short time, any prediction of future practical effect is necessarily short-term, since the court is not equipped to predict accurately the future consequential impact of legislation. The characterization process is not technical or formalistic. A court can look at the background and circumstances of a statute’s enactment as well as at the words used in it.

Three points with respect to the identification of the pith and substance are important to clarify. First, the pith and substance of a challenged statute or provision must be described as precisely as possible. A vague or general description is unhelpful, as it can result in the law being superficially assigned to both federal and provincial heads of powers or may exaggerate the extent to which the law extends into the other level of government’s sphere of jurisdiction. However, precision should not be confused with narrowness. A court must focus on the law itself and what it is really about. The pith and substance of a challenged statute or provision should capture the law’s essential character in terms that are as precise as the law will allow. Second, it is permissible in some circumstances for a court to include the legislative choice of means in the definition of a statute’s pith and substance, as long as it does not lose sight of the fact that the goal of the analysis is to identify the true subject matter of the challenged statute or provision. In some cases, the choice of means may be so central to the legislative objective that the main thrust of a statute or provision, properly understood, is to achieve a result in a particular way, which would justify including the means in identifying the pith and substance. Third, the characterization and classification stages of the division of powers analysis are and must be kept distinct. The pith and substance of a statute or a provision must be identified without regard to the heads of legislative competence.

At the second stage of the division of power analysis, a court must classify the matter by reference to the heads of power set out in the Constitution. Matters and classes of subjects are distinct. Law-making powers are exercisable in relation to matters, which in turn generally come within broader classes of subjects. Section 91 does not provide in the context of the POGG power that Parliament can make laws in relation to classes of subjects; instead, it states that Parliament can make laws for the peace, order, and good government of Canada in relation to “Matters”. National concern is a well-established but rarely applied doctrine of Canadian constitutional law derived from the introductory clause of s. 91 of the Constitution, which empowers Parliament to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces. A matter that falls under the POGG power necessarily does not come within the classes of subjects enumerated in ss. 91 and 92.

Courts must approach a finding that the federal government has jurisdiction on the basis of the national concern doctrine with great caution. The effect of finding that a matter is one of national concern is permanent and confers exclusive jurisdiction over that matter on Parliament. However, the scope of the federal power is defined by the nature of the national concern itself and only aspects with a sufficient connection to the underlying inherent national concern will fall within the scope of the federal power.

A closely related question concerns the applicability of the double aspect doctrine to a matter of national concern. The double aspect doctrine recognizes that the same fact situations can be regulated from different perspectives, one of which may relate to a provincial power and the other to a federal power. The doctrine can apply in cases in which the federal government has jurisdiction on the basis of the national concern doctrine. Such an approach fosters coherence in the law, because the double aspect doctrine can apply to every enumerated federal and provincial head of power. It is also consistent with the modern approach to federalism, which favours flexibility and a degree of overlapping jurisdiction. However, the fact that the double aspect doctrine canapply does not mean that it will apply in a given case. It may apply if a fact situation can be regulated from different federal and provincial perspectives and each level of government has a compelling interest in enacting legal rules in relation to that situation. It should be applied cautiously so as to avoid eroding the importance attached to provincial autonomy.

The double aspect doctrine takes on particular significance where Canada asserts jurisdiction over a matter that involves a minimum national standard imposed by legislation that operates as a backstop. The recognition of a matter of national concern such as this will inevitably result in a double aspect situation. This is in fact the very premise of a federal scheme that imposes minimum national standards: Canada and the provinces are both free to legislate in relation to the same fact situation but the federal law is paramount. In such a case, even if the national concern test would otherwise be met, a cautious approach to the double aspect doctrine should act as an additional check. The court must be satisfied that Canada in fact has a compelling interest in enacting legal rules over the federal aspect of the activity at issue and that the multiplicity of aspects is real and not merely nominal.

Turning to the national concern test, there are two points worth noting about the framework as a whole. First, the recognition of a matter of national concern must be based on evidence. An onus rests on Canada throughout the national concern analysis to adduce evidence in support of its assertion of jurisdiction. Second, there is no requirement that a matter be historically new in order to be found to be one of national concern. Many new developments may be predominantly local and provincial in character and fall under provincial heads of power. The term “new”, as used in the jurisprudence, refers to matters that could satisfy the national concern test and includes both “new” matters that did not exist in 1867 and matters that are “new” in the sense that the understanding of those subject matters has, in some way, shifted so as to bring out their inherently national character. Thus, the critical element of the analysis is the requirement that matters of national concern be inherently national in character, not that they be historically new.

Finding that a matter is one of national concern involves a three-step analysis. First, as a threshold question, Canada must establish that the matter is of sufficient concern to the country as a whole to warrant consideration as a possible matter of national concern. Second, the matter must have a singleness, distinctiveness and indivisibility. Third, Canada must show that the proposed matter has a scale of impact on provincial jurisdiction that is reconcilable with the division of powers. The purpose of the national concern analysis is to identify matters of inherent national concern — matters which, by their nature, transcend the provinces.

The analysis begins by asking, as a threshold question, whether the matter is of sufficient concern to Canada as a whole to warrant consideration under the national concern doctrine. This invites a common-sense inquiry into the national importance of the proposed matter. This approach does not open the door to the recognition of federal jurisdiction simply on the basis that a legislative field is important; it operates to limit the application of the national concern doctrine and provides essential context for the analysis that follows.

The second step of the analysis requires that a matter have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. Two principles underpin this requirement: first, to prevent federal overreach, jurisdiction should be found to exist only over a specific and identifiable matter that is qualitatively different from matters of provincial concern; and second, federal jurisdiction should be found to exist only where the evidence establishes provincial inability to deal with the matter.

Under the first principle of the singleness, distinctiveness and indivisibility analysis, the court should inquire into whether the matter is predominantly extraprovincial and international in its nature or its effects, into the content of any international agreements in relation to the matter, and into whether the matter involves a federal legislative role that is distinct from and not duplicative of that of the provinces. It is clearly not enough for a matter to be quantitativelydifferent from matters of provincial concern — the mere growth or extent of a problem across Canada is insufficient to justify federal jurisdiction. International agreements may in some cases indicate that a matter is qualitatively different from matters of provincial concern. However, the existence of treaty obligations is not determinative of federal jurisdiction as there is no freestanding federal treaty implementation power and Parliament’s jurisdiction to implement treaties signed by the federal government depends on the ordinary division of powers. Furthermore, to be qualitatively different from matters of provincial concern, the matter must not be an aggregate of provincial matters. The federal legislative role must be distinct from and not duplicative of that of the provinces. Federal legislation will not be qualitatively distinct if it overshoots regulation of a national aspect of the field and instead duplicates provincial regulation or regulates issues that are primarily of local concern.

The second principle underpinning the singleness, distinctiveness, and indivisibility analysis is that federal jurisdiction should be found to exist only where the evidence establishes provincial inability to deal with the matter. Provincial inability functions as a strong constraint on federal power and should be seen as a necessary but not sufficient requirement for the purposes of the national concern doctrine. In order for provincial inability to be established both of these factors are required: (1) the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; and (2) the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. And there is a third factor that is required in the context of the national concern doctrine in order to establish provincial inability: a province’s failure to deal with the matter must have grave extraprovincial consequences. The requirement for grave extraprovincial consequences sets a high bar for a finding of provincial inability for the purposes of the national concern doctrine and can be satisfied by actual harm or by a serious risk of harm being sustained in the future. It may include serious harm to human life and health or to the environment, though it is not necessarily limited to such consequences. Mere inefficiency or additional financial costs stemming from divided or overlapping jurisdiction is clearly insufficient. Evaluating extraprovincial harm helps to determine whether a national law is not merely desirable, but essential, in the sense that the problem is beyond the power of the provinces to deal with it. This connects the provincial inability test to the overall purpose of the national concern test, which is to identify matters of inherent national concern that transcend the provinces.

At the third and final step of the national concern analysis, Canada must show that the proposed matter has a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution. The purpose of the scale of impact analysis is to protect against unjustified intrusions on provincial autonomy and prevent federal overreach. At this stage of the analysis, the intrusion upon provincial autonomy that would result from empowering Parliament to act is balanced against the extent of the impact on the interests that would be affected if Parliament were unable to constitutionally address the matter at a national level. Identifying a new matter of national concern will be justified only if the latter outweighs the former.

In this case, the true subject matter of the GGPPA is establishing minimum national standards of GHG price stringency to reduce GHG emissions. Both the short and long titles of the GGPPA confirm that its true subject matter is not just to mitigate climate change, but to do so through the pan-Canadian application of pricing mechanisms to a broad set of GHG emission sources. Likewise, it is clear from reading the preamble as a whole that the focus of the GGPPAis on national GHG pricing. In Parliament’s eyes, the relevant mischief is the effects of the failure of some provinces to implement GHG pricing systems or to implement sufficiently stringent pricing systems, and the consequential failure to reduce GHG emissions across Canada. To address this mischief, the GGPPA establishes minimum national standards of GHG pricing that apply across Canada, setting a GHG pricing floor across the country.

Similarly, it can be seen from the events leading up to the enactment of the GGPPA and from government policy papers that there was a focus on GHG pricing and establishing minimum national standards of GHG price stringency for GHG emissions — through a federally imposed national direct GHG pricing backstop — without displacing provincial and territorial jurisdiction over the choice and design of pricing instruments. This is supported by evidence of the legislative debates. Both elected representatives and senior public servants consistently described the purpose of the GGPPA in terms of imposing a Canada-wide GHG pricing system, not of regulating GHG emissions generally.

The legal effects of the GGPPA confirm that its focus is on national GHG pricing and confirm its essentially backstop nature. In jurisdictions where Parts 1 and 2 of theGGPPA apply, the primary legal effect is to create one GHG pricing scheme that prices GHG emissions in a manner that is consistent with what is done in the rest of the Canadian economy. Part 1 of the GGPPAdirectly prices the emissions of certain fuel producers, distributors and importers. Part 2 directly prices the GHG emissions of covered facilities to the extent that they exceed the applicable efficiency standards. The GGPPA does not require those to whom it applies to perform or refrain from performing specified GHG emitting activities. Nor does it tell industries how they are to operate in order to reduce their GHG emissions. Instead, all it does is to require persons to pay for engaging in specified activities that result in the emission of GHGs. The GGPPA leaves individual consumers and businesses free to choose how they will respond, or not, to the price signals sent by the marketplace. The legal effects of the GGPPAare thus centrally aimed at pricing GHG emissions nationally.

Moreover, because the GGPPAoperates as a backstop, the legal effects of Parts 1 and 2 of the statute — a federally imposed GHG pricing scheme — apply only if the Governor in Council has listed a province or territory. The GGPPA provides that the Governor in Council may make listing decisions for Parts 1 and 2 of the statute only for the purpose of ensuring that the pricing of greenhouse gas emissions is applied broadly in Canada at levels that the Governor in Council considers appropriate, taking into account, as the primary factor, the stringency of provincial pricing mechanisms for greenhouse gas emissions. As a result, the GHG pricing mechanism described in Parts 1 and 2 of the GGPPA will not come into operation at all in a province or territory that already has a sufficiently stringent GHG pricing system.Not only does this confirm the backstop nature of the GGPPA — that of creating minimum national standards of GHG pricing — but this feature gives legal effect to the federal government’s commitment to give the provinces and territories the flexibility to design their own policies to meet emissions reductions targets, including carbon pricing, adapted to each province and territory’s specific circumstances, as well as to recognize carbon pricing policies already implemented or in development by provinces and territories.

Although evidence of practical effects is not helpful in this case given the dearth of such evidence, the evidence of practical effects to date is consistent with providing flexibility and support for provincially designed GHG pricing schemes. Practically speaking, the only thing not permitted by the GGPPAis for provinces and territories not to implement a GHG pricing mechanism or one that is not sufficiently stringent.

Applying the threshold question, Canada has adduced evidence that clearly shows that establishing minimum national standards of GHG price stringency to reduce GHG emissions is of sufficient concern to Canada as a whole that it warrants consideration in accordance with the national concern doctrine. The history of efforts to address climate change in Canada reflects the critical role of carbon pricing strategies in policies to reduce GHG emissions. There is also a broad consensus among expert international bodies that carbon pricing is a critical measure for the reduction of GHG emissions. This matter is critical to our response to an existential threat to human life in Canada and around the world. As a result, it passes the threshold test and warrants consideration as a possible matter of national concern.

Minimum national standards of GHG price stringency, which are implemented by means of the backstop architecture of the GGPPA, relate to a federal role in carbon pricing that is qualitatively different from matters of provincial concern. GHGs are a specific and precisely identifiable type of pollutant. The harmful effects of GHGs are known, and the fuel and excess emissions charges are based on the global warming potential of the gases. GHG emissions are also predominantly extraprovincial and international in their character and implications. This flows from their nature as a diffuse atmospheric pollutant and from their effect in causing global climate change. Moreover, the regulatory mechanism of GHG pricing is also specific and limited. GHG pricing operates in a particular way, seeking to change behaviour by internalizing the cost of climate change impacts, incorporating them into the price of fuel and the cost of industrial activity. It is a distinct form of regulation that does not amount to the regulation of GHG emissions generally or encompass regulatory mechanisms that do not involve pricing. The Governor in Council’s power to make a regulation that applies the GGPPA’s pricing system to a province may be exercised only if it is first determined that the province’s pricing mechanisms are insufficiently stringent. If each province designed its own pricing system and all the provincial systems met the federal pricing standards, the GGPPA would achieve its purpose without operating to directly price GHG emissions anywhere in the country. The GGPPA is tightly focused on this distinctly federal role and does not descend into the detailed regulation of all aspects of GHG pricing.

Provincial inability is established in this case. First, the provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions. While the provinces could choose to cooperatively establish a uniform carbon pricing scheme, doing so would not assure a sustained approach because the provinces and territories are constitutionally incapable of establishing a binding outcome-based minimum legal standard — a national GHG pricing floor — that applies in all provinces and territories at all times. Second, a failure to include one province in the scheme would jeopardize its success in the rest of Canada. The withdrawal of one province from the scheme would clearly threaten its success for two reasons: emissions reductions that are limited to a few provinces would fail to address climate change if they were offset by increased emissions in other Canadian jurisdictions; and any province’s failure to implement a sufficiently stringent GHG pricing mechanism could undermine the efficacy of GHG pricing everywhere in Canada because of the risk of carbon leakage. Third, a province’s failure to act or refusal to cooperate would have grave consequences for extraprovincial interests. It is well established that climate change is causing significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, coastal regions and on Indigenous peoples.

Although the matter has a clear impact on provincial jurisdiction, its impact on the provinces’ freedom to legislate and on areas of life that would fall under provincial heads of power is qualified and limited. First, the matter is limited to GHG pricing of GHG emissions — a narrow and specific regulatory mechanism. If a province fails to meet the minimum national standards, the GGPPAimposes a backstop pricing system, but only to the extent necessary to remedy the deficiency in provincial regulation to address the extraprovincial and international harm that might arise from the province’s failure to act or to set sufficiently stringent standards. Second, the matter’s impact on areas of life that would generally fall under provincial heads of power is also limited. The discretion of the Governor in Council is necessary in order to ensure that some provinces do not subordinate or unduly burden the other provinces through their unilateral choice of standards. Although this restriction may interfere with a province’s preferred balance between economic and environmental considerations, it is necessary to consider the interests that would be harmed — owing to irreversible consequences for the environment, for human health and safety and for the economy — if Parliament were unable to constitutionally address the matter at a national level. This irreversible harm would be felt across the country and would be borne disproportionality by vulnerable communities and regions in Canada. The impact on those interests justify the limited constitutional impact on provincial jurisdiction.

As a final matter, the fuel and excess emission charges imposed by the GGPPA have a sufficient nexus with the regulatory scheme to be considered constitutionally valid regulatory charges. To be a regulatory charge, as opposed to a tax, a governmental levy with the characteristics of a tax must be connected to a regulatory scheme. The first step is to identify the existence of a relevant regulatory scheme; if such a scheme is found to exist, the second step is to establish a relationship between the charge and the scheme itself. Influencing behaviour is a valid purpose for a regulatory charge and regulatory charges need not reflect the cost of the scheme. The amount of a regulatory charge whose purpose is to alter behaviour is set at a level designed to proscribe, prohibit, or lend preference to a behaviour. Limiting such a charge to the recovery of costs would be incompatible with the design of a scheme of this nature. Nor must the revenues that are collected be used to further the purposes of the regulatory scheme. Rather, the required nexus with the scheme will exist where the charges themselves have a regulatory purpose. There is ample evidence that the fuel and excess emission charges imposed by Parts 1 and 2 of the GGPPAhave a regulatory purpose. They cannot be characterized as taxes; rather, they are regulatory charges whose purpose is to advance the GGPPA’s regulatory purpose by altering behaviour.

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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons for Judgment: LeBel J. (McLachlin C.J. and Binnie, Deschamps, Fish and Abella JJ. concurring)

I: Introduction: 0:00:28, paragraph 1

II: Manasie Ipeelee: 0:00:54

II(A): Background and Criminal History: 0:00:57, paragraphs 2 to 10

II(B): The Current Offence: 0:06:17, paragraphs 11 to 13

II(C): Judicial History: 0:07:44

II(C)(1): Ontario Court of Justice, [2009] O.J. No. 6413 (QL): 0:07:48, paragraphs 14 to 15

II(C)(2): Ontario Court of Appeal, 2009 ONCA 892, 99 O.R. (3d) 419: 0:09:18, paragraph 16 to 18

III: Frank Ralph Ladue: 0:10:56

III(A): Background and Criminal History: 0:10:59, paragraphs 19 to 25

III(B): The Current Offence: 0:15:38, paragraphs 26 to 27

III(C): Judicial History: 0:17:50

III(C)(1): Provincial Court of British Columbia, 2010 BCPC 410 (CanLII): 0:17:54, paragraph 28

III(C)(2): Court of Appeal for British Columbia, 2011 BCCA 101, 302 B.C.A.C. 93: 0:18:56, paragraphs 29 to 32

IV: Issues: 0:21:42, paragraph 33

V: Analysis: 0:22:15

V(A): The Principles of Sentencing: 0:22:18, paragraph 34 to 39

V(B): The Offence — Sentencing for Breach of a Long-Term Supervision Order: 0:26:40, paragraphs 40 to 55

V(C): The Offender — Sentencing Aboriginal Offenders: 0:39:41, paragraphs 56 to 63

V(C)(1): Making Sense of Aboriginal Sentencing: 0:48:23, paragraphs 64 to 79

V(C)(2): Evaluating Aboriginal Sentencing Post-Gladue: 1:04:58, paragraphs 80 to 87

VI: Application: 1:11:34

VI(A): Manasie Ipeelee: 1:11:37, paragraphs 88 to 93

VI(B): Frank Ralph Ladue: 1:15:05, paragraphs 94 to 97

VII: Conclusion: 1:18:36, paragraph 98

Reasons Dissenting in Part: Rothstein J.

I: Introduction: 1:18:52, paragraphs 99 to 101

II: Facts: 1:20:32

II(A): 1:20:35, Manasie Ipeelee: , paragraphs 102 to 107

II(B): Frank Ralph Ladue: 1:23:34, paragraphs 108 to 112

III: General Principles of Sentencing: 1:27:24, paragraphs 113 to 114

IV: Long-Term Offenders: 1:28:07, paragraphs 115 to 116

V: Long-Term Supervision Orders: 1:29:25, paragraphs 117 to 120

VI: Breaches of Long-Term Supervision Orders: 1:32:19, paragraphs 121 to 125

VII: Sentencing Principles Applicable to Aboriginal Offenders: 1:35:20, paragraphs 126 to 128

VIII: The Application of Section 718.2(e) and Gladue to Long-Term Offenders: 1:37:08, paragraphs 129 to 131

IX: Application: 1:39:31

IX(A): Ipeelee: 1:39:33, paragraphs 132 to 140

IX(B): Ladue: 1:43:56, paragraphs 141 to 157

Headnote provided by the Supreme Court of Canada:

These two appeals involve Aboriginal offenders with long criminal records. Both Aboriginal offenders were declared long‑term offenders and had long‑term supervision orders (“LTSOs”) imposed. The offender I is an alcoholic with a history of committing violent offences when intoxicated. He was sentenced to six years’ imprisonment followed by an LTSO after being designated a long‑term offender. After his release from prison, I committed an offence while intoxicated thereby breaching a condition of his LTSO. He was sentenced to three years’ imprisonment, less six months of pre‑sentence custody at a 1:1 credit rate. The Court of Appeal dismissed the appeal brought by I. The offender L is addicted to drugs and alcohol and has a history of committing sexual assaults when intoxicated. L was sentenced to three years’ imprisonment followed by an LTSO after being designated a long‑term offender. After his release from prison, he failed a urinalysis test; thereby breaching a condition of his LTSO. L was sentenced to three years’ imprisonment, less five months of pre‑sentence custody at a 1.5:1 rate. A majority of the Court of Appeal allowed L’s appeal and reduced the sentence to one year’s imprisonment.

Held (Rothstein J. dissenting in part): The appeal should be allowed in Ipeelee. The appeal should be dismissed in Ladue.

Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ.: The central issue in these appeals is how to determine a fit sentence for a breach of an LTSO in the case of an Aboriginal offender in particular. Trial judges enjoy a broad discretion in the sentencing process. A sentencing judge has a duty to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a fit and proper sentence which respects the well‑established principles and objectives of sentencing set out in Part XXIII of the Criminal Code. Proportionality is the sine qua non of a just sanction. Proportionality, the fundamental principle of sentencing, is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. An appellate court must be satisfied that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender.

The purpose of an LTSO is two‑fold: to protect the public and to rehabilitate offenders and reintegrate them into the community. It is the sentencing judge’s duty, adopting a contextual approach, to determine which sentencing options will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. Sentencing is an individual process. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender’s risk of reoffence, and the circumstances of the breach.

Section 718.2(e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e). Section 718.2(e) does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. The enactment of s. 718.2(e) is a specific direction by Parliament to pay particular attention to the circumstances of Aboriginal offenders during the sentencing process because those circumstances are unique and different from those of non‑Aboriginal offenders. To the extent that current sentencing practices do not further the objectives of deterring criminality and rehabilitating offenders, those practices must change so as to meet the needs of Aboriginal offenders and their communities. Sentencing judges, as front‑line workers in the criminal justice system, are in the best position to re‑evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination. Just sanctions are those that do not operate in a discriminatory manner.

When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, [1999] 1 S.C.R. 688: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community. The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples.

When sentencing an Aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters provide the necessary context for understanding and evaluating the case‑specific information presented by counsel. However, these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non‑Aboriginal offenders. The parity principle which is contained in s. 718.2(b) means that any disparity between sanctions for different offenders needs to be justified. To the extent that the application of the Gladue principles lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process. Counsel has a duty to bring individualized information before the court in every case, unless the offender expressly waives his right to have it considered. A Gladue report, which contains case‑specific information, is tailored to the specific circumstances of the Aboriginal offender. A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. If the sentencing judge fails to apply the Gladue principles in any case involving an Aboriginal offender this would run afoul of this statutory obligation. Furthermore, the failure to apply the Gladue principles in any case would also result in a sentence that is not fit and is not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including the breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

In the instant case of I, the courts below made several errors in principle warranting appellate intervention. The courts below erred in concluding that rehabilitation was not a relevant sentencing objective. As a result of this error, the courts below gave only attenuated consideration to I’s circumstances as an Aboriginal offender. A sentence of one year’s imprisonment should be substituted. In the instant case of L, the decision of the majority of the Court of Appeal is well founded and adequately reflects the principles and objectives of sentencing. The appeal is dismissed and the sentence of one year’s imprisonment is affirmed.

Per Rothstein J. (dissenting in part): In sentencing for the breach of a condition of an LTSO, which is central to the risk of the long‑term offender violently reoffending, the protection of the public, more so than the rehabilitation or reintegration of the offender, must be the dominant consideration of the sentencing judge in the determination of a fit and proper sentence. The majority in this case does not specifically address the issue of the sentencing of Aboriginal offenders who have been found to be long‑term offenders and have been found guilty of breaching a condition of an LTSO. They have not taken account of the difference between the objectives and requirements of LTSOs for long‑term offenders who abide by the conditions of their LTSOs and the objectives and requirements of sentencing long‑term offenders who have breached a condition of their LTSOs.

The breach of an LTSO raises serious concerns that rehabilitation and reintegration are not being achieved and calls into doubt whether, despite supervision, the long‑term offender has demonstrated that the substantial risk of reoffending in a violent manner in the community by the long‑term offender can be adequately managed. Section 753.3(1) of the Criminal Code provides that a breach of an LTSO constitutes an indictable offence, as opposed to a hybrid offence, with a maximum sentence of 10 years. The maximum term is for the breach of the LTSO exclusively and is not dependent on the long‑term offender having been found guilty of another substantive offence, violent or otherwise. The necessary implication is that Parliament viewed breaches of LTSOs as posing such risk to the protection of society that long‑term offenders may have to be separated from society for a significant period of time. Where a breach is central to the substantial risk of reoffending, such as where alcohol or substance consumption has been found to be the trigger for violent offences by the long‑term offender, the breach must be considered to be very serious.

Section 718.2(e) of the Criminal Coderequires a sentencing judge to consider background and systemic factors in crafting a sentence, and all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to Aboriginal offenders, including long‑term Aboriginal offenders. As with all sentencing, this must be done with regard to the particular individual, the threat they pose, and their chances of rehabilitation and reintegration. Evaluating these options lies within the discretion of the sentencing judge. In the case of long‑term offenders, the paramount consideration is the protection of society. This applies to all long‑term offenders, including Aboriginal long‑term offenders who have compromised the management of their risk of reoffending by breaching a condition of their LTSOs.

Once an Aboriginal individual is found to be a long‑term offender, and the offender has breached one or more conditions of his or her LTSO, alternatives to a significant prison term will be limited. The alternatives to imprisonment must be viable and the sentencing judge must be satisfied that they are consistent with protection of society. Alternatives may include returning Aboriginal offenders to their communities. However, as in all cases, this must be done with protection of the public as the paramount concern; Aboriginal communities are not a separate category entitled to less protection because the offender is Aboriginal. Where the breach of an LTSO goes to the control of the Aboriginal offender in the community, rehabilitation and reintegration into society will have faltered, if not failed. In such case, the sentencing judge may have no alternative but to separate the Aboriginal long‑term offender from society for a significant period of time. Nevertheless, during the period of incarceration, the Aboriginal status of the long‑term offender should be taken into account for the purpose of providing appropriate programs that are intended to rehabilitate the offender so that upon release, the substantial risk of reoffending may be controlled.

In this case, it has not been shown that the sentence imposed on the offender I was demonstrably unfit and the appeal should be dismissed. The sentencing judge’s findings demonstrate a thorough appreciation of the circumstances. He properly recognized that protection of the public was the paramount concern in breaches of LTSOs. As a long‑term offender, I has been found to show a pattern of repetitive behaviour with a likelihood of causing death or physical or psychological injury or a likelihood of causing injury, pain or other evil to other persons in the future through failure to control his sexual impulses. His alcohol consumption is central to such behaviour.

With respect to the offender L, one year’s imprisonment was a fit and proper sentence and the appeal should be dismissed. The sentencing judge did not err in focussing on protection of society as the paramount consideration in her sentencing decision. The sentencing judge found that the only way to protect the community, given L’s high risk of reoffending sexually and moderate to high risk of reoffending violently, was to emphasize the objective of isolation. She noted that even if L did not commit a substantive offence, his breach was serious. But this was a case where there was a realistic opportunity for rehabilitation that was denied L because of a “bureaucratic error”. The sentencing judge does not appear to have considered that it was this error that caused L to be sent to a residential halfway house, which apparently tolerates serious drug abusers and does not provide programs for Aboriginal offenders. This failure meant that L’s moral blameworthiness was not properly assessed.

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View Details

See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

Listen on 1.25x, 1.5x, 1.75x, or 2x playback speeds for faster “reading”.

The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Reasons for Judgment: McLachlin C.J. (Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.)

I: Introduction: 00:26, paragraphs 1 to 11

II: Analysis: 05:13

II(A): Does the Law of Injunctions Govern This Situation?: 05:16, paragraphs 12 to 15

II(B): The Source of a Duty to Consult and Accommodate: 08:06, paragraphs 16 to 25

II(C): When the Duty to Consult and Accommodate Arises: 13:24, paragraphs 26 to 38

II(D): The Scope and Content of the Duty to Consult and Accommodate: 21:06, paragraphs 39 to 51

II(E): Do Third Parties Owe a Duty to Consult and Accommodate?: 29:38, paragraph 52 to 56

II(F): The Province’s Duty: 33:48, paragraphs 57 to 59

II(G): Administrative Review: 35:13, paragraphs 60 to 63

II(H): Application to the Facts: 37:33

II(H)(1): Existence of the Duty: 37:37, paragraphs 64 to 67

II(H)(2)(i): Strength of the Case: 39:41, paragraphs 69 to 71

II(H)(2)(ii): Seriousness of the Potential Impact: 41:40, paragraphs 72 to 77

II(H)(3): Did the Crown Fulfill its Duty?: 44:47, paragraphs 78 to 79

III: Conclusion: 45:55, paragraph 80

Headnote provided by the Supreme Court of Canada:

For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title has not yet been legally recognized. The Province of British Columbia issued a “Tree Farm License” (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Co. The Haida challenged in court these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections. They asked that the replacements and transfer be set aside. The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida. The Court of Appeal reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6.

Held: The Crown’s appeal should be dismissed. Weyerhaeuser Co.’s appeal should be allowed.

While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy, which may fail to adequately take account of their interests prior to final determination thereof. If they can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies.

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously. While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35 of the Constitution Act, 1982, demands.

The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith. The content of the duty varies with the circumstances and each case must be approached individually and flexibly. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake. The effect of good faith consultation may be to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown. This does not mean, however, that third parties can never be liable to Aboriginal peoples.

Finally, the duty to consult and accommodate applies to the provincial government. At the time of the Union, the Provinces took their interest in land subject to any interest other than that of the Province in the same. Since the duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union, the Province took the lands subject to this duty.

The Crown’s obligation to consult the Haida on the replacement of T.F.L. 39 was engaged in this case. The Haida’s claims to title and Aboriginal right to harvest red cedar were supported by a good prima facie case, and the Province knew that the potential Aboriginal rights and title applied to Block 6, and could be affected by the decision to replace T.F.L. 39. T.F.L. decisions reflect strategic planning for utilization of the resource and may have potentially serious impacts on Aboriginal rights and titles. If consultation is to be meaningful, it must take place at the stage of granting or renewing T.F.L.’s. Furthermore, the strength of the case for both the Haida’s title and their right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may also require significant accommodation to preserve the Haida’s interest pending resolution of their claims.

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Timestamps:

Reasons for Judgment: Dickson J. (Beetz, McIntyre, Chouinard and Lamer JJ. concurring)

Introduction: 0:00:25, paragraphs 1 to 3

I: The Facts and Legislation: 0:01:26, paragraph 4

II(A): The Lord’s Day Act: 0:01:47, paragraphs 5 to 8

II(B): The Charter: 0:03:56, paragraphs 9 to 13

II: Alberta Courts: 0:05:51

II(A): Provincial Court: 0:05:52, paragraphs 14 to 18

II(B): The Alberta Court of Appeal: 0:10:23, paragraphs 19 to 30

III: The Constitutional Questions: 0:20:07, paragraphs 31 to 32

IV: Standing and Jurisdiction: 0:20:51, paragraphs 33 to 47

V: The Characterization of the Lord’s Day Act: 0:28:05

V(A): The Problem: 0:28:09, paragraphs 48 to 50

V(B): The Historic Underpinnings: 0:30:26, paragraphs 51 to 53

V(C): Canadian Case Law: 0:33:37, paragraphs 54 to 72

V(D): The American Authorities: 0:51:42, paragraphs 73 to 77

VI: Purpose and Effect of Legislation: 0:54:54, paragraphs 78 to 93

VII: Freedom of Religion: 1:03:26, paragraphs 94 to 102

VII(A): The Absence of an Establishment Clause: 1:08:44, paragraphs 103 to 109

VII(B): "Freedom of Religion" under the Canadian Bill of Rights: 1:13:06, paragraphs 110 to 115

VII(C): The Purpose of Protecting Freedom of Conscience and Religion: 1:17:12, paragraphs 116 to 136

VIII: Section 1 of the Charter: 1:30:18, paragraphs 137 to 143

IX: Classification: 1:34:11, paragraphs 144 to 149

X: Conclusion: 1:36:47, paragraphs 150 to 151

Concurring Reasons: Wilson J.

1:38:03: paragraphs 152 to 164

Headnote provided by the Supreme Court of Canada:

The respondent, Big M Drug Mart Ltd., was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. Respondent was acquitted at trial. The Court of Appeal dismissed the appeal. The constitutional questions before this Court were whether the Lord’s Day Act, and especially s. 4, (i) infringed the right to freedom of conscience and religion guaranteed in the Charter; (ii) were justified by s. 1 of the Charter; and (iii) were enacted pursuant to the criminal law power (s. 91(27)) of the Constitution Act, 1867.

Held: The appeal should be dismissed.

Per Dickson, Beetz, McIntyre, Chouinard and Lamer JJ.: Respondent is entitled to challenge the validity of the Lord’s Day Act on the basis that it violates the Charter guarantee of freedom of conscience and religion. Recourse to s. 24 is unnecessary where the challenge is based on the unconstitutionality of the legislation. The supremacy of the Constitution declared in s. 52 dictates that no one can be convicted under an unconstitutional law. Any accused, whether corporate or individual, may defend a criminal charge by arguing the constitutional invalidity of the law under which the charge is brought.

The initial test of constitutionality must be whether or not the legislation's purpose is valid; the legislation's effects need only be considered when the law under review has passed the purpose test. The effects test can never be relied on to save legislation with an invalid purpose.

The Lord’s Day Act cannot be found to have a secular purpose on the basis of changed social conditions. Legislative purpose is the function of the intent of those who draft and then enact the legislation at the time and not of any shifting variable.

Since the acknowledged purpose of the Lord’s Day Act, on long‑standing and consistently maintained authority, is the compulsion of religious observance, that Act offends freedom of religion and it is unnecessary to consider the actual impact of Sunday closing upon religious freedom. Legislation whose purpose is found to violate the Charter cannot be saved even if its effects were found to be inoffensive. Robertson and Rosetanni, which considered freedom of religion under s. 1 of the Canadian Bill of Rights, is of no assistance since the application and not the constitutionality of the legislation was in issue.

The Lord’s Day Act to the extent that it binds all to a sectarian Christian ideal, works a form of coercion inimical to the spirit of the Charter. The Act gives the appearance of discrimination against non‑Christian Canadians. Religious values rooted in Christian morality are translated into a positive law binding on believers and non‑believers alike. Non‑Christians are prohibited for religious reasons from carrying out otherwise lawful, moral and normal activities. Any law, purely religious in purpose, which denies non‑Christians the right to work on Sunday denies them the right to practise their religion and infringes their religious freedom. The protection of one religion and the concomitant non‑protection of others imports a disparate impact destructive of the religious freedom of society.

The power to compel, on religious grounds, the universal observance of the day of rest preferred by one religion is not consistent with the preservation and enhancement of the multi‑cultural heritage of Canadians recognized in s. 27 of the Charter.

The appellant did not establish that the Lord’s Day Act constituted a reasonable limit, demonstrably justifiable in a free and democratic society and therefore it cannot be saved pursuant to s. 1 of the Charter.

The Lord’s Day Act is enacted pursuant to the criminal law power under s. 91(27) of the Constitution Act,1867. It compels the observance of a religious duty by means of prohibitions and penalties, and is therefore directed towards the maintenance of public order and the safeguarding of public morality.

Per Wilson J.: The approach of the courts to the constitutional validity of legislation in alleged violation of the Charter is different from the approach to the constitutional validity of legislation impugned under the division of powers. Since the Charter is first and foremost an effects‑oriented document, the first stage of any analysis must be to inquire whether the legislation has the effect of violating an entrenched right. If it has, then it is not necessary to consider the purpose behind the enactment at this stage.

Section 1, however, will entail an analysis and evaluation of the purpose underlying the impugned legislation if the government seeks to justify a limitation on the citizen's right under that section. The government policy objective must then be assessed and a determination made as to whether this interest is sufficiently important to override a Charter right and whether the means chosen to achieve that objective were reasonable. The objective asserted as a reasonable limit under s. 1 will necessarily reflect the purpose of the enactment in the `division of powers' analysis.

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Timestamps:

Reasons for Judgment: Iacobucci J. (Gonthier, Cory, McLachlin, and Major JJ. concurring)

Introduction: 00:24, paragraph 1

1: Facts: 00:51, paragraphs 2 to 5

2: Relevant Statutory Provisions: 3:26, paragraph 6

3: Judicial History: 07:37

3(A): Ontario Court (General Division) (1991), 6 O.R. (3d) 441: 07:41, paragraphs 7 to 12

3(B):Court of Appeal(1995), 22 O.R. (3d) 385: 10:55, paragraphs 13 to 16

4: Issues: 13:35, paragraph 17

5: Analysis: 13:50, paragraphs 18 to 42

6: Disposition and Costs: 31:37, paragraph 43

Headnote provided by the Supreme Court of Canada:

A bankrupt firm’s employees lost their jobs when a receiving order was made with respect to the firm’s property. All wages, salaries, commissions and vacation pay were paid to the date of the receiving order. The province’s Ministry of Labour audited the firm’s records to determine if any outstanding termination or severance pay was owing to former employees under the Employment Standards Act (“ESA”) and delivered a proof of claim to the Trustee. The Trustee disallowed the claims on the ground that the bankruptcy of an employer does not constitute dismissal from employment and accordingly creates no entitlement to severance, termination or vacation pay under the ESA. The Ministry successfully appealed to the Ontario Court (General Division) but the Ontario Court of Appeal overturned that court’s ruling and restored the Trustee’s decision. The Ministry sought leave to appeal from the Court of Appeal judgment but discontinued its application. Following the discontinuance of the appeal, the Trustee paid a dividend to Rizzo’s creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested and were granted an order granting them leave to appeal. At issue here is whether the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA.

Held: The appeal should be allowed.

At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontario’s Interpretation Act provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.

The objects of the ESA and of the termination and severance pay provisions themselves are broadly premised upon the need to protect employees. Finding ss. 40 and 40a to be inapplicable in bankruptcy situations is incompatible with both the object of the ESA and the termination and severance pay provisions. The legislature does not intend to produce absurd consequences and such a consequence would result if employees dismissed before the bankruptcy were to be entitled to these benefits while those dismissed after a bankruptcy would not be so entitled. A distinction would be made between employees merely on the basis of the timing of their dismissal and such a result would arbitrarily deprive some of a means to cope with economic dislocation.

The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise. Section 2(3) of the Employment Standards Amendment Act, 1981 exempted from severance pay obligations employers who became bankrupt and lost control of their assets between the coming into force of the amendment and its receipt of royal assent. Section 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. If this were not the case, no readily apparent purpose would be served by this transitional provision. Further, since the ESA is benefits-conferring legislation, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.

When the express words of ss. 40 and 40a are examined in their entire context, the words “terminated by an employer” must be interpreted to include termination resulting from the bankruptcy of the employer. The impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Such an interpretation would defeat the true meaning, intent and spirit of the ESA. Termination as a result of an employer's bankruptcy therefore does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the Bankruptcy Act for termination and severance pay in accordance with ss. 40 and 40a of the ESA. It was not necessary to address the applicability of s. 7(5) of the ESA.

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Timestamps:

Reasons for Judgment: McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)

Introduction: 0:00:25, paragraph 1 to 3

I: Introduction and Background: 0:02:16, paragraphs 4 to 20

II: Procedural History: 0:15:51, paragraphs 21 to 25

II(A): British Columbia Supreme Court, 2008 BCSC 661, 85 B.C.L.R. (4th) 89: 0:18:40, paragraphs 26 to 31

II(B): British Columbia Court of Appeal, 2010 BCCA 15, 100 B.C.L.R. (4th) 269: 0:23:36, paragraphs 32 to 35

III: Questions on Appeal: 0:26:50, paragraph 36

IV: Statutory and Constitutional Provisions: 0:27:25

IV(A): The CDSA: 0:27:29, paragraphs 37 to 41

IV(B): The Constitutional Provisions: 0:29:42, paragraphs 42 to 44

V: Division of Powers Arguments: 0:31:36, paragraphs 45 to 49

V(A): Are the Impugned Provisions of the CDSA Ultra Vires?: 0:33:08, paragraphs 50 to 52

V(B): Should Sections 4(1) and 5(1) Be Read as Not Applying to Insite?: 0:34:54, paragraphs 53 to 56

V(C): Interjurisdictional Immunity: 0:37:40, paragraphs 57 to 70

V(D): Paramountcy: 0:44:14, paragraphs 71 to 72

V(E): Conclusion on Division of Powers: 0:45:36, paragraph 73

VI: Charter Claims: 0:45:57, paragraphs 74 to 78

VI(A): Relationship Between the Division of Powers Claim and the Charter Claims: 0:46:52, paragraphs 79 to 83

VI(B): Challenge to Sections 4(1) and 5(1) of the CDSA: 0:49:44, paragraph 84.

VI(B)(1): Are the Claimants’ Section 7 Interests Engaged by the Prohibition on Possession of Drugs in Section 4(1) of the CDSA?: 0:50:12, paragraphs 85 to 96

VI(B)(2): Canada’s Argument on Choice: 0:55:23, paragraphs 97 to 106

VI(B)(3): Is the Deprivation in Accordance with the Principles of Fundamental Justice?: 0:59:05, paragraphs 107 to 115

VI(C): Has the Minister’s Decision Violated the Claimants’ Section 7 Rights?: 1:02:53, paragraphs 116 to 118

VI(C)(1): Has the Minister Made a Decision?: 1:04:42, paragraphs 119 to 125

VI(C)(2): Are the Claimants’ Section 7 Rights Engaged by the Minister’s Decision?: 1:08:43, paragraph 126

VI(C)(3): Does the Minister’s Refusal to Grant an Exemption to Insite Accord With the Principles of Fundamental Justice?: 1:09:40, paragraphs 127 to 128

VI(C)(3)(a): Arbitrariness: 1:10:41, paragraphs 129 to 132

VI(C)(3)(b): Gross Disproportionality: 1:13:48, paragraph 133

VI(C)(3)(c): Overbreadth: 1:14:26, paragraphs 134 to 135

VI(C)(4): Conclusion on the Challenge to Minister’s Decision: 1:14:49, paragraph 136

VI(D): Section 1: 1:15:46, paragraphs 137 to 140

VII: Remedy: 1:17:34, paragraphs 141 to 153

VIII: VANDU’s Cross-Appeal: 1:22:35, paragraphs 154 to 155

IX: Disposition: 1:23:37, paragraphs 156 to 157

X: Costs: 1:25:15, paragraphs 158 to 159

Headnote provided by the Supreme Court of Canada:

In the early 1990s, injection drug use reached crisis levels in Vancouver’s downtown eastside (“DTES”). Epidemics of HIV/AIDS and hepatitis C soon followed, and a public health emergency was declared in the DTES in September 1997. Health authorities recognized that creative solutions would be required to address the needs of the population of the DTES, a marginalized population with complex mental, physical, and emotional health issues. After years of research, planning, and intergovernmental cooperation, the authorities proposed a scheme of care for drug users that would assist them at all points in the treatment of their disease, not simply when they quit drugs for good. The proposed plan included supervised drug consumption facilities which, though controversial in North America, have been used with success to address health issues associated with injection drug use in Europe and Australia.

Operating a supervised injection site required an exemption from the prohibitions of possession and trafficking of controlled substances under s. 56 of the CDSA, which provides for exemption at the discretion of the Minister of Health, for medical and scientific purposes. Insite received a conditional exemption in September 2003, and opened its doors days later. North America’s first government‑sanctioned safe injection facility, it has operated constantly since then. It is a strictly regulated health facility, and its personnel are guided by strict policies and procedures. It does not provide drugs to its clients, who must check in, sign a waiver, and are closely monitored during and after injection. Its clients are provided with health care information, counselling, and referrals to various service providers or an on‑site, on demand detox centre. The experiment has proven successful. Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area. It is supported by the Vancouver police, the city and provincial governments.

In 2008, a formal application for a new exemption was made before the initial one expired. The Minister had granted temporary extensions in 2006 and 2007, but he indicated that he had decided to deny the application. When the expiry of the extensions loomed, this action was started in an effort to keep Insite open.

The trial judge found that the application of ss. 4(1) and 5(1) of the CDSA violated the claimants’ rights under s. 7 of the Charter. He granted Insite a constitutional exemption, permitting it to continue to operate free from federal drug laws. The Court of Appeal dismissed the appeal and held that the doctrine of interjurisdictional immunity applied.

Held: The appeal and the cross‑appeal are dismissed. The Minister of Health is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith.

The criminal prohibitions on possession and trafficking in the CDSA are constitutionally valid and applicable to Insite under the division of powers. First, the impugned provisions of the CDSA are, in pith and substance, valid exercises of the federal criminal law power. The fact that they have the incidental effect of regulating provincial health institutions does not mean that they are constitutionally invalid. Second, provincial programmes designed to advance the public interest are not, by virtue of their public interest status, exempt from the operation of criminal laws unless the law is expressly or impliedly so limited. The CDSA does not contain such a limit. Third, the doctrine of interjurisdictional immunity does not apply. Decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference. In addition, the doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Finally, as it is common ground that, absent a constitutional immunity, the federal law constrains operations at Insite and trumps any provincial legislation or policies that conflict with it, it is unnecessary to inquire into whether the doctrine of paramountcy applies.

The claimants’ lack of success on the division of powers issue does not doom their claim that the law deprives them of a s. 7 Charter right. There is no conflict between saying that a federal law is validly adopted under s. 91 of the Constitution Act, 1867, and that the same law, in purpose of effect, deprives individuals of rights guaranteed by the Charter.

Section 4(1) of the CDSA engages the s. 7 Charter rights of the individual claimants and others like them, but, because the Minister has the power to grant exemptions from s. 4(1), it does so in accordance with the principles of fundamental justice. Section 4(1) directly engages the liberty interests of the health professionals who provide the supervised services at Insite because of the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA. It also directly engages the rights to life, liberty and security of the person of the clients of Insite. In order to make use of the lifesaving and health‑protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises. Prohibiting possession at large engages drug users’ liberty interests; prohibiting possession at Insite engages their rights to life and to security of the person. However, because s. 56 gives the Minister a broad discretion to grant exemptions from the application of the CDSA if, “in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest”, s. 4(1) does not violate s. 7. The exemption acts as a safety valve that prevents the CDSA from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects.

On the facts, the prohibition on trafficking in s. 5(1) of the CDSA does not constitute a limitation of the claimants’ s. 7 rights because trafficking charges would not apply to the activities of Insite staff.

The discretion vested in the Minister of Health is not absolute: as with all exercises of discretion, the Minister’s decisions must conform to the Charter. If the Minister’s decision results in an application of the CDSA that limits the s. 7 rights of individuals in a manner that is not in accordance with the Charter, then the Minister’s discretion has been exercised unconstitutionally. In the special circumstances of this case, the Court should go on to consider whether the Minister’s decision violated the clamaints’ Charter rights. The issue is properly before the Court and justice requires that it be considered.

There is no reason to conclude that the deprivation the claimants would suffer was due to personal choice rather than government action. The ability to make some choices does not negate the trial judge’s findings that addiction is a disease in which the central feature is impaired control over the use of the addictive substance. Additionally, the morality of the activity the law regulates is irrelevant at the initial stage of determining whether the law engages a s. 7 right. Finally, the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions. While it is for the relevant governments to make criminal and health policy, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter. The issue is not whether harm reduction or abstinence‑based programmes are the best approach to resolving illegal drug use, but whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter.

The Minister’s failure to grant a s. 56 exemption to Insite engaged the claimants’ s. 7 rights and contravened the principles of fundamental justice. The Minister of Health must be regarded as having made a decision whether to grant an exemption, since he considered the application before him and decided not to grant it. The Minister’s decision, but for the trial judge’s interim order, would have prevented injection drug users from accessing the health services offered by Insite, threatening their health and indeed their lives. It thus engages the claimants’ s. 7 interests and constitutes a limit on their s. 7 rights. Based on the information available to the Minister, this limit is not in accordance with the principles of fundamental justice. It is arbitrary regardless of which test for arbitrariness is used because it undermines the very purposes of the CDSA — the protection of health and public safety. It is also grossly disproportionate: during its eight years of operation, Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.

If a s. 1 analysis were required, a point not argued, no s. 1 justification could succeed. The goals of the CDSA are the maintenance and promotion of public health and safety. The Minister’s decision to refuse the exemption bears no relation to these objectives, therefore they cannot justify the infringement of the complainants’ s. 7 rights.

As the infringement is ongoing, and the concern is a governmental decision, s. 24(1) allows the court to fashion an appropriate remedy. In the special circumstances of this case, an order in the nature of mandamus is warranted. The Minister is ordered to grant an exemption to Insite under s. 56 of the CDSA forthwith. A declaration that the Minister erred in refusing the exemption would be inadequate, given the seriousness of the infringement and the grave consequences that might result from a lapse in Insite’s current constitutional exemption, and for various reasons, granting a permanent constitutional exemption would be inappropriate.

On future applications, the Minister must exercise that discretion within the constraints imposed by the law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety. In accordance with the Charter, the Minister must consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.

VANDU’s cross‑appeal, which challenges the application of the prohibition on possession to all addicted persons, lacks an adequate basis in the record.

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Timestamps:

Reasons for Judgment: Martin J. (Moldaver, Karakatsanis, Kasirer and Jamal JJ. concurring)

I: Introduction: 0:00:25, paragraphs 1 to 3

II: Background: 0:02:43, paragraphs 4 to 17

II(A): Provincial Court of British Columbia, 2018 BCPC 415 (Solomon Prov. Ct. J.): 0:08:44, paragraph 18

II(B): Court of Appeal for British Columbia, 2020 BCCA 136, 63 C.R. (7th) 338 (Saunders, Groberman and Bennett JJ.A.): 0:09:30, paragraphs 19 to 22

III: Issues: 0:11:02, paragraphs 23 to 24

IV: Analysis: 0:11:39

IV(A): The Analytical Framework for Consent and Condom Refusal or Removal: 0:11:42, paragraph 25

IV(A)(1): The Offence of Sexual Assault: 0:12:38, paragraphs 26 to 35

IV(A)(2): The Arguments of the Parties: 0:20:15, paragraphs 36 to 38

IV(A)(3): Interpreting the “Sexual Activity in Question” in Section 273.1(1): 0:22:27, paragraphs 39 to 75

IV(A)(4): The Hutchinson Decision Is Not Determinative: 0:48:24, paragraphs 76 to 98

IV(A)(5): Summary and Application: 1:04:12, paragraphs 99 to 106

IV(B): Evidence of Fraud: 1:07:54, paragraph 107

V: Conclusion: 1:08:09, paragraph 108

Joint Concurring Reasons: Côté, Brown and Rowe JJ. (Wagner C.J. concurring)

I: Overview: 1:08:28, paragraphs 109 to 118

II: Analysis: 1:12:55

II(A): Hutchinson Applies to This Appeal: 1:12:57, paragraphs 119 to 120

II(A)(1): This Court’s Decisions Are Intended to Apply Broadly: 1:14:25, paragraphs 121 to 132

II(A)(2): Properly Interpreted, Hutchinson Governs This Appeal: 1:22:54, paragraphs 133 to 159

II(A)(3): Our Colleague Attempts to Distinguish Hutchinson On Grounds That Are Incoherent and Illogical: 1:40:50, paragraphs 160 to 167

II(A)(4): Our Colleague’s Misreading of Hutchinson Effects an Overturning of Precedent: 1:47:59, paragraphs 168 to 170

II(B): Stare Decisis: 1:49:18, paragraphs 171 to 173

II(B)(1): The Doctrine of Stare Decisis: 1:50:43, paragraphs 174 to 181

II(B)(2): The Rationale for Stare Decisis: 1:54:07, paragraphs 182 to 189

II(B)(3): Criticisms of Stare Decisis: 1:57:14, paragraphs 190 to 195

II(B)(4): Circumstances in Which This Court May Overturn Its Own Precedent: 1:59:32, paragraphs 196 to 266

II(B)(5): Conclusion: Stare Decisis: 2:28:07, paragraphs 267 to 269

II(C): None of the Circumstances for Overturning Precedent Apply to Hutchinson: 2:29:10, paragraphs 270 to 271

II(C)(1): Hutchinson Was Not Rendered Per Incuriam: 2:30:11, paragraphs 272 to 274

II(C)(2): Hutchinson Is Not Unworkable: 2:32:23, paragraphs 275 to 278

II(C)(3): There Is No Foundational Erosion Undermining Hutchinson: 2:36:31, paragraphs 279 to 283

II(C)(4): Even if Hutchinson Could Be Overturned, This Court Should Exercise Its Discretion to Uphold It: 2:38:50, paragraphs 284 to 286

II(C)(5): Conclusion on Horizontal Stare Decisis Applied to Hutchinson: 2:41:17, paragraph 287

II(D): Application of Hutchinson to This Appeal: 2:41:39, paragraph 288

II(D)(1): The Two-Step Analysis of Consent Mandated by Hutchinson: 2:42:11, paragraphs 289 to 305

II(D)(2): Conclusion on the Two-Step Consent Framework: 2:49:57, paragraphs 306 to 309

III: Disposition: 2:51:21, paragraph 310

Headnote provided by the Supreme Court of Canada:

The complainant testified that she and K met online and then in person to determine if they wanted to have sex with each other. The complainant made clear to K that she would only agree to have sex with him if he wore a condom. Despite this, during their second episode of intercourse, K did not wear a condom. The complainant only realized that K had not been wearing a condom after he ejaculated inside her. Based upon these events, K was charged with sexual assault.

K applied to have the charge dismissed by bringing a no‑evidence motion. He argued that the Crown failed to prove the absence of the complainant’s consent — an essential element in the actus reus of sexual assault — based on the Court’s decision in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, which sets out a two‑step process for analyzing consent. At the first step, the question is whether the complainant consented to engage in the “sexual activity in question” under s. 273.1(1) of the Criminal Code, which is defined by reference to the specific physical sex act involved. If the complainant consented, or her conduct raises a reasonable doubt about her consent, the second step is to consider whether there are any circumstances under s. 265(3) or s. 273.1(2)(c), including fraud, that vitiate her apparent consent. Fraud under s. 265(3)(c) requires proof of the accused’s dishonesty, which can include non‑disclosure, and a deprivation in the form of significant risk of serious bodily harm from that dishonesty. K argued that the complainant’s agreement to sexual intercourse was enough to establish consent to the sexual activity in question, as she consented to all the physical acts the parties engaged in, and there was no evidence that this consent was tainted by fraud.

The trial judge granted K’s no‑evidence motion and dismissed the sexual assault charge. The Court of Appeal unanimously allowed the Crown’s appeal, set aside the acquittal and ordered a new trial; however, the three judges split on the reasoning as to which Criminal Code provision applied in examining consent: s. 273.1(1) or s. 265(3)(c). K appeals to the Court from the setting aside of his acquittal.

Held: The appeal should be dismissed.

Per Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Condom use, when it is a condition of the complainant’s consent, forms part of the “sexual activity in question” under s. 273.1 of the Criminal Code. This is the only interpretation that provides a harmonious reading of the text of the relevant provisions in their entire context and that accords with Parliament’s purpose of promoting personal autonomy and equal sexual agency. Conditioning agreement to sexual touching on condom use goes to the heart of the specific physical activity in question and the existence or non‑existence of subjective consent, and there is no need to resort to the doctrine of fraud and its stringent legal requirements. Hutchinson remains binding authority for what it decided — that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question — but is distinguishable in situations such as in the case at bar where the accused refuses to wear a condom and the complainant’s consent has been conditioned on its use. In the instant case, the complainant gave evidence that she had communicated to K that her consent to sex was contingent on condom use and K did not wear a condom. This was evidence of a lack of subjective consent by the complainant to the sexual activity in question — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting K’s no evidence motion.

The starting point and primary provision for determining whether there is consent to sexual activity for sexual assault offences is s. 273.1. The key term “sexual activity in question” in s. 273.1(1) exists within a composite phrase that requires “voluntary agreement . . . to engage in the sexual activity in question”. Parliament’s intent as demonstrated by the text, context, and purpose of the sexual assault provisions must be sought and interpreted consistently with the Court’s jurisprudence on consent and harmoniously with all parts of s. 273.1 and the overall legislative scheme. The legal meaning given to the “sexual activity in question” cannot be narrowly drawn or fixed for all cases — it is tied to context and cannot be assessed in the abstract, relates to particular behaviours and actions, and will depend on the facts and circumstances of the individual case. It will be defined by the evidence and the complainant’s allegations, and will emerge from a comparison of what actually happened and what, if anything, was agreed to.

In the instant case, the specific sexual assault alleged and the sexual activity in question is vaginal sexual intercourse without a condom. In determining whether the complainant’s agreement to sexual intercourse with a condom means she also agreed to sexual intercourse without a condom, the starting point is the proposition from Hutchinson that the “sexual activity in question” the complainant must agree to is the “specific physical sex act”. The focus should therefore be on the specific sex acts, defined by reference to the physical acts involved. Applying Hutchinson’s focus on the “specific physical sex act”, condom use may form part of the “sexual activity in question” under s. 273.1(1) because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. The physical difference is that intercourse without a condom involves direct skin‑to‑skin contact, while intercourse with a condom involves indirect contact. Logically and legally, direct and unmediated sexual touching is a different physical act than indirect and mediated contact; whether a condom is required is basic to the physical act.

All principles of statutory interpretation compel the conclusion that sex with a condom is a different physical activity than sex without a condom for the purposes of the “sexual activity in question”. It is the only interpretation that reads s. 273.1 as a whole and harmoniously with the Court’s jurisprudence on subjective and affirmative consent. When interpreting Parliament’s definition of consent expressed in s. 273.1, subs. (1) must be read together with subs. (2), which specifies situations where no consent would be obtained in relation to sexual assault offences. Section 273.1(2)(d) and (e) in particular underscore how the complainant’s words and actions are directly relevant to whether or not there was consent to the sexual activity in question. Based on the complainant’s evidence in the case at bar, she expressed, by words and conduct, a lack of agreement to engage in sexual intercourse without a condom. Section 273.1(2)(d) expressly reinforces that the clear rejection of a specific activity must be respected if consent is to have any meaning. Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it. Recognizing that condom use may form part of the sexual activity in question affirms that individuals have the right to determine who touches their bodies and how, is the only way to respect the need for a complainant’s affirmative and subjective consent to each and every sexual act, and situates condom use at the definitional core of consent, where it belongs. The complainant’s “no” to sexual intercourse without a condom cannot be ignored under either s. 273.1(1) or (2) because today, not only does no mean no, but only yes means yes. Further, voluntary agreement to sex with a condom cannot be taken to imply consent to sex without one as consent cannot be implied from the circumstances or the relationship between the accused and the complainant.

In addition, recognizing that condom use may be part of the sexual activity in question fulfills Parliament’s objective of giving effect to the equality and dignity‑affirming aims underlying the sexual assault prohibitions, responds to the context and harms of non‑consensual condom refusal or removal, and respects the restraint principle in criminal law. Non‑consensual condom refusal or removal is a form of sexual violence generating physical and psychological harms. The power dynamic it rests on is exacerbated among vulnerable women and among people with diverse gender identities and sex workers. Preventing a complainant from limiting consent to circumstances where a condom is used erodes the right to refuse or limit consent to specific sexual acts, leaving the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy. There are no vagueness or certainty concerns if condom use is seen as part of the sexual activity in question. Asking whether a condom was required and if so, whether one was used, has the necessary certainty to prevent over‑criminalization. While restraint is an important criminal law principle, it does not override Parliament’s countervailing imperative of enacting sexual assault laws that respect the rights and realities of those subject to such violence.

While vitiation of consent by fraud under s. 265(3)(c) may still arise in other cases, it does not apply when condom use is a condition of consent. Instead of asking whether the complainant subjectively wanted the touching to take place, fraud shifts the focus to how the accused behaved and asks whether he attempted to, or succeeded in, deceiving the complainant about his lack of condom use. The requirement to prove deception and a deprivation misdirects the inquiry and creates gaps which leave many outside the law’s protection in relation to sexual assault. Such an approach should not be adopted where the complainant has not agreed to sex without a condom because: (1) requiring proof of a deprivation fails to account for how, under the law of consent, all persons are able to decide to consent or not based on whatever grounds are personally meaningful to them; (2) the harms of non‑consensual condom refusal or removal go beyond a significant risk of serious bodily harm and are much wider than the risk of pregnancy and STIs; (3) the harm requirement for fraud means that certain people and certain types of sex would not come within the law’s protection; and (4) proving a significant risk of serious bodily harm will likely entail a patronizing assessment of whether the harm the complainant experienced was significant enough to vitiate a consent that, in their mind, was never given.

Hutchinson does not govern a case like the present one where consent turns on condom use and no condom was worn, and should therefore be distinguished. Hutchinson simply held that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question in s. 273.1. Hutchinson was chiefly concerned with the delineation of deception under the criminal law and did not establish the sweeping proposition that all cases involving a condom fall outside s. 273.1 and can only be addressed when the conditions of fraud are established. The decision in Hutchinson is limited by its factual context and the majority’s repeated references to the effectiveness of the condom, its sabotaged state and the accused’s deception. In cases involving condoms, Hutchinson applies where the complainant finds out after the sexual act that the accused was wearing a knowingly sabotaged condom. If the complainant finds out during the sexual act that the condom was sabotaged, then they can revoke their subjective consent, the actus reus of sexual assault is made out, and there is no need to consider the fraud analysis.

Per Wagner C.J. and Côté, Brown and Rowe JJ.: There is agreement with the majority that the appeal should be dismissed. However, there is disagreement that Hutchinson is distinguishable. Hutchinson squarely applies to the case at bar. It held, categorically, that condom use is not part of “the sexual activity in question” contemplated in s. 273.1(1) of the Criminal Code. When a person agrees to have sex on the condition that their partner wear a condom, but that condition is circumvented in any way, the sole pathway to criminal liability is the fraud vitiating consent analysis under s. 265(3)(c). Applying Hutchinson to the present case, there is some evidence that the complainant consented to the sexual activity in question, but a new trial is required to determine whether her apparent consent was vitiated by fraud.

The case at bar is indistinguishable from Hutchinson for several reasons. First, the binding ratio decidendi of all the decisions of the Court, as an apex court, is necessarily wider than the majority acknowledges. When the question of law is one of statutory interpretation, the ratio of the binding precedent at issue must be understood in the context of the Court’s role: to provide a clear and uniformly applicable interpretation of how a statutory provision is to be understood and applied by lower courts across Canada. Second, the interpretation of Hutchinson advanced by the majority is contradicted by a plain reading of the decision, by the Hutchinson minority opinion, and by Hutchinson’s treatment by courts across the country. Third, the distinction the majority draws between Hutchinson and the case at bar is both incoherent and illogical. Distinguishing Hutchinson on the basis of no condom versus sabotaged condoms obscures the bright line of criminality established in Hutchinson. By arguing that the Hutchinson majority referred only to effective condom use, the majority in the instant case introduces needless uncertainty into the criminal law. It follows from the foregoing that the majority’s attempt to distinguish Hutchinson, in substance, effects an overturning of that precedent. Hutchinson conclusively determined the meaning of “the sexual activity in question” under s. 273.1(1) as excluding all forms of condom use, not only condom sabotage.

As Hutchinson cannot be distinguished, it must either be applied or overturned. To assess whether Hutchinson can be overturned, it is necessary to examine the Court’s horizontal stare decisis jurisprudence and articulate a framework for assessing whether the Court can overturn a prior precedent. According to the foundational doctrine of stare decisis — to stand by previous decisions and not to disturb settled matters— judges are to apply authoritative precedents and have like matters be decided by like. There are two forms of stare decisis: vertical and horizontal. Vertical stare decisis requires lower courts to follow decisions of higher courts, with limited exceptions. Horizontal stare decisis,which binds courts of coordinate jurisdiction in a similar manner, operates differently at each level of court. As the apex court, the Court’s decisions often require the elaboration of general principles that can unify large areas of the law and provide meaningful guidance to the legal community and the general public. Such guidance is given effect in a variety of circumstances and for an indefinite period. Eventually, these frameworks may need to be revisited to ensure that they remain workable and responsive to social realities. The framework for horizontal stare decisis at the Court must take account of its institutional role and how that role relates to the rationale for stare decisis.

First, stare decisis promotes legal certainty and stability, allowing people to plan and manage their affairs. It serves to take the capricious element out of law and to give stability to a society. Second, itpromotes the rule of law, such that people are subject to similar rules. Third, stare decisis promotesthe legitimate and efficient exercise of judicial authority. Res judicata prevents re‑litigation of specific cases and stare decisis guards against this systemically, by preventing re‑litigation of settled law. Both doctrines promote judicial efficiency. Stare decisis also upholds the institutional legitimacy of courts, which hinges on public confidence that judges decide cases on a principled basis, rather than based on their own views. Stare decisis is foundational in that it requires that judges give effect to settled legal principles and depart from them only where a proper basis is shown. The criticisms that stare decisis is inherently conservative and that courts only adhere to it when the impugned precedent accords with their personal preference arise from the inconsistent application of stare decisis. Both criticisms are answered by its proper application.

Given the disparate nature of the Court’s horizontal stare decisis jurisprudence and given the importance of stare decisis, it is necessary to set out a clear and coherent framework: the Court can only overturn its own precedents if that precedent (1) was rendered per incuriam, that is, in ignorance or forgetfulness of the existence of a binding authority or relevant statute; (2) is unworkable, or (3) has had its foundation eroded by significant societal or legal change.

To overturn a precedent on the ground that it was rendered per incuriam, a litigant must show that the Court failed to consider a binding authority or relevant statute and that this failure affected the judgment. This will be a rare basis to overturn a decision because the Court has the benefit of party and intervener submissions, lower court decisions on the issue, and rigorous internal processes, and because the standard to establish that a decision was decided per incuriam is high.

An unworkable precedent is one that is unduly complex or difficult to apply in practice and that undermines at least one of the purposes that stare decisis is intended to promote (legal certainty, the rule of law, judicial efficiency). Parties seeking to overturn precedent on this basis need to demonstrate that a precedent undermines the goals of stare decisis. It is not enough for litigants to assert baldly that a precedent has been applied in an uneven and unpredictable manner, creates uncertainty, or is doctrinally incoherent.

Where fundamental changes undermine the rationale of a precedent, this eroded precedent can be overturned by the Court. This can occur in two ways, through: (1) societal change (e.g., social, economic, or technological change in Canadian society), or (2) legal change, such as constitutional amendments, or, incrementally, when subsequent jurisprudence attenuates a precedent. With respect to societal change, the Court can overturn its decisions when fundamental changes to societal conditions undermine the decision’s rationale, because the changes either render the concerns underlying the precedent moot or inconsistent with contemporary societal norms. Those seeking to overturn precedent based on societal change must demonstrate such change. As for legal change, the need to revisit precedents that conflict with the Constitution is clear but the point at which subsequent decisions have attenuated a precedent sufficiently so as to warrant overturning it is more difficult to define. The jurisprudence reveals a common theme: the precedent relies on principles or gives effect to purposes inconsistent with those underlying the Court’s subsequent decisions.

All per incuriam decisions should be overturned. But an unworkable or eroded precedent may be upheld if overturning the decision would result in unforeseeable change or expand criminal liability. It should no longer be argued that a precedent should be overturned because it is (1) subject to judicial or academic criticism, (2) diverges from foreign jurisprudence, (3) is wrong in the eyes of some, (4) is a new or old precedent, or (5) was decided by a narrow majority. This framework for horizontal stare decisis is intended to apply to all statutory interpretation, common law, and constitutional precedents of the Court. However, differences exist between these types of precedents. In order for the Court to revisit a precedent based on statutory interpretation, it must be shown that the Court misconstrued the legislature’s intent. As the meaning of a statute is fixed at the time of enactment, parties cannot argue that social change has altered the meaning of a particular provision. If the passage of time renders the statute inconsistent with contemporary social reality, it is the legislature that must remedy the statute’s deficiencies.

Applying this horizontal stare decisis framework, Hutchinson meets none of the criteria for overturning precedent. First, it was not rendered per incuriam as it cannot be demonstrated that the Hutchinson panel ignored binding precedent, much less that the result would have been different had it considered an allegedly overlooked authority. Further, the failure to consider binding precedent would be grounds for overturning Hutchinson, not a basis for reading its ratio so narrowly that it may be distinguished. Second, Hutchinson is not unworkable. Far from creating uncertainty, the raison d’être of Hutchinson was to provide a bright line rule for interpreting the “sexual activity in question” under s. 273.1(1). The Hutchinson rule consigns all forms of deception involving contraception, including condom use or non‑use, to the fraud analysis under s. 265(3)(c). Post‑Hutchinson jurisprudence discloses no difficulty applying it. At most, it may be said that a tiny fraction of reviewing judges simply disagree with Hutchinson. Likewise, the academic criticism levied against Hutchinson suggests that it was wrongly decided but the existence of criticism alone is insufficient to justify departing from a precedent. Third, no foundational erosion has occurred with respect to Hutchinson. Any societal change that may have occurred since Hutchinson cannot change Parliament’s legislative intent as authoritatively interpreted by the Hutchinson Court. The statutory meaning of “the sexual activity in question” set out in Hutchinson reflects Parliament’s intent at the time of enactment. If the passage of time has rendered this statutory provision inconsistent with contemporary social reality, it is for the legislature to further study and to remedy any alleged deficiency. Finally, the Crown has not pointed to any legal change that could warrant overturning Hutchinson: no constitutional or jurisprudential developments post-Hutchinson that would attenuate its precedential value are mentioned. The Court’s recent sexual assault jurisprudence does not purport to displace Hutchinson’s clear and categorical interpretation of the “sexual activity in question” under s. 273.1(1) as excluding condom use.

Even if Hutchinson were unworkable or if its precedential foundation had eroded, there are at least two compelling reasons to uphold it. First, overturning Hutchinson would raise concerns regarding the retrospective expansion of criminal liability. Second, overturning Hutchinson may lead to unforeseeable consequences. Suddenly re‑orienting the law to expand the scope of consent would be a major legal change engaging potentially wide‑reaching policy issues. Hutchinson therefore governs the case at bar, such that the two‑step fraud vitiating consent analysis under s. 265(3)(c) is engaged, rather than the consent analysis under s. 273.1(1).

At the first step of the Hutchinson framework, there is some evidence that the complainant voluntarily agreed to the sexual activity in question. However, at the second step, there is also some evidence that the complainant’s apparent consent may have been vitiated by fraud. On the low threshold of a no‑evidence motion, there was at least some evidence of dishonesty by omission and risk of deprivation through the risk of pregnancy. Accordingly, a new trial is required.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see “Headnote” below “Timestamps”.

Timestamps:

Reasons for Judgment: L’Heureux-Dubé J. (Gonthier, McLachlin, Bastarache and Binnie JJ. concurring)

Introduction: 0:00:27, paragraph 1

I: Factual Background: 0:01:09, paragraphs 2 to 6

II: Relevant Statutory Provisions and Provisions of International Treaties: 0:05:46, paragraph 7

III: Judgments: 0:10:04

III(A): Federal Court -- Trial Division (1995), 101 F.T.R. 110: 0:10:06, paragraphs 8 to 9

III(B): Federal Court of Appeal, [1997] 2 F.C. 127: 0:11:46, paragraph 10

IV: Issues: 0:13:16, paragraph 11

V: Analysis: 0:14:17

V(A): Stated Questions Under Section 83(1) of the Immigration Act: 0:14:18, paragraph 12

V(B): The Statutory Scheme and the Nature of the Decision: 0:15:44, paragraphs 13 to 17

V(C): Procedural Fairness: 0:20:19, paragraphs 18 to 20

V(C)(1): Factors Affecting the Content of the Duty of Fairness: 0:21:45, paragraphs 21 to 28

V(C)(2): Legitimate Expectations: 0:27:41, paragraph 29

V(C)(3): Participatory Rights: 0:28:56, paragraphs 30 to 34

V(C)(4): The Provision of Reasons: 0:33:04, paragraphs 35 to 44

V(C)(5): Reasonable Apprehension of Bias: 0:40:41, paragraphs 45 to 48

V(D): Review of the Exercise of the Minister’s Discretion: 0:44:52, paragraphs 49 to 50

V(D)(1): The Approach to Review of Discretionary Decision-Making: 0:46:07, paragraphs 51 to 56

V(D)(2): The Standard of Review in This Case: 0:52:12, paragraphs 57 to 62

V(D)(3): Was this Decision Unreasonable?: 0:56:00, paragraphs 63 to 67

V(D)(3)(a): The Objectives of the Act: 0:59:54, paragraph 68

V(D)(3)(b): International Law: 1:00:43, paragraphs 69 to 71

V(D)(3)(c): The Ministerial Guidelines: 1:02:54, paragraphs 72 to 75

V(E): Conclusions and Disposition: 1:06:43, paragraphs 76 to 77

Joint Reasons Dissenting in Part: Iacobucci J. (Cory J. concurring)

1:07:39, paragraphs 78 to 81

Headnote provided by the Supreme Court of Canada:

The appellant, a woman with Canadian-born dependent children, was ordered deported. She then applied for an exemption, based on humanitarian and compassionate considerations under s. 114(2) of the Immigration Act, from the requirement that an application for permanent residence be made from outside Canada. This application was supported by letters indicating concern about the availability of medical treatment in her country of origin and the effect of her possible departure on her Canadian-born children. A senior immigration officer replied by letter stating that there were insufficient humanitarian and compassionate reasons to warrant processing the application in Canada. This letter contained no reasons for the decision. Counsel for the appellant, however, requested and was provided with the notes made by the investigating immigration officer and used by the senior officer in making his decision. The Federal Court -- Trial Division, dismissed an application for judicial review but certified the following question pursuant to s. 83(1) of the Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” The Court of Appeal limited its consideration to the question and found that the best interests of the children did not need to be given primacy in assessing such an application. The order that the appellant be removed from Canada, which was made after the immigration officer’s decision, was stayed pending the result of this appeal.

Held: The appeal should be allowed.

Per L’Heureux‑Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ.: Section 83(1) of the Immigration Act does not require the Court of Appeal to address only the certified question. Once a question has been certified, the Court of Appeal may consider all aspects of the appeal lying within its jurisdiction.

The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.

A duty of procedural fairness applies to humanitarian and compassionate decisions. In this case, there was no legitimate expectation affecting the content of the duty of procedural fairness. Taking into account the other factors, although some suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model. The duty of fairness owed in these circumstances is more than minimal, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness. The opportunity to produce full and complete written documentation was sufficient.

It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision. Reasons are required here given the profound importance of this decision to those affected. This requirement was fulfilled by the provision of the junior immigration officer’s notes, which are to be taken to be the reasons for decision. Accepting such documentation as sufficient reasons upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that, in the administrative context, this transparency may take place in various ways.

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker. This duty applies to all immigration officers who play a role in the making of decisions. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference. Statements in the immigration officer’s notes gave the impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that the appellant was a single mother with several children and had been diagnosed with a psychiatric illness. Here, a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made by an immigration officer. The notes therefore give rise to a reasonable apprehension of bias.

The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. Review of the substantive aspects of discretionary decisions is best approached within the pragmatic and functional framework defined by this Court’s decisions, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions. Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.

In applying the applicable factors to determining the standard of review, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness”. The appropriate standard of review is, therefore, reasonableness simpliciter.

The wording of the legislation shows Parliament’s intention that the decision be made in a humanitarian and compassionate manner. A reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children since children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of these values may be found in the purposes of the Act, in international instruments, and in the Minister’s guidelines for making humanitarian and compassionate decisions. Because the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of the appellant’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to the appellant’s country of origin might cause her.

Per Cory and Iacobucci JJ.: The reasons and disposition of L’Heureux-Dubé J. were agreed with apart from the effect of international law on the exercise of ministerial discretion under s. 114(2) of the Immigration Act. The certified question must be answered in the negative. The principle that an international convention ratified by the executive is of no force or effect within the Canadian legal system until incorporated into domestic law does not survive intact the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation.

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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see “Headnote” below “Timestamps”.

Timestamps:

Reasons for Judgment: McLachlin C.J. (LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)

Introduction: 00:25, paragraph 1

I: Background: 00:43, paragraphs 2 to 11

II: Issues: 06:54, paragraph 12

III: Analysis: 07:10

III(A): The Role of the Courts in Resolving Conflicts Issues: 07:13, paragraphs 13 to 18

III(B): The Governing Principles: 09:37, paragraph 19

III(B)(1): Avoiding Conflicts of Interest: 09:55

III(B)(1)(a): English Origins: 09:59, paragraph 20

III(B)(1)(b): The Martin Test: A Focus on Risk of Prejudice and Balancing of Values: 11:11, paragraphs 21 to 22

III(B)(1)(c): Types of Prejudice Addressed by Conflict of Interest Rules: 12:26, paragraph 23

III(B)(1)(d): Confidential Information: 13:13, paragraph 24

III(B)(1)(e): Effective Representation: 14:07, paragraphs 25 to 26

III(B)(1)(f): The Bright Line Rule: 15:07, paragraphs 27 to 30

III(B)(1)(g): The Scope of the Bright Line Rule: 17:28, paragraph 31 to 37

III(B)(1)(h): The Substantial Risk Principle: 22:57, paragraph 38

III(B)(1)(i): Practical Implications: 23:39, paragraphs 39 to 40

III(B)(1)(j): Summary: 24:52, paragraphs 41 to 42

III(B)(2): The Duty of Commitment to the Client’s Cause: 25:43, paragraphs 43 to 44

III(B)(3): The Duty of Candour: 26:28, paragraphs 45 to 47

III(C): Application of the Principles: 27:35, paragraph 48

III(C)(1): The Duty to Avoid Conflicting Interests: 27:52, paragraphs 49 to 54

III(C)(2): The Duty of Commitment to the Client’s Cause: 31:09, paragraphs 55 to 56

III(C)(3): The Duty of Candour: 32:09, paragraphs 57 to 59

III(D): The Appropriate Remedy: 33:01, paragraphs 60 to 67

IV: Conclusion: 37:07, paragraph 68

Headnote provided by the Supreme Court of Canada:

McKercher LLP was acting for CN on several matters when, without CN’s consent or knowledge, it accepted a retainer to act for the plaintiff in a $1.75 billion class action against CN. CN first learned that McKercher was acting against it in the class action when it was served with the statement of claim. McKercher hastily terminated all retainers with CN, except for one which CN terminated. CN applied to strike McKercher as the solicitor of record in the class action due to an alleged conflict of interest. The motion judge granted the application and disqualified McKercher. The Court of Appeal overturned the motion judge’s order.

Held: The appeal should be allowed and the matter should be remitted to the Court of Queen’s Bench for redetermination of a remedy.

A lawyer’s duty of loyalty has three salient dimensions: a duty to avoid conflicting interests; a duty of commitment to the client’s cause; and a duty of candour. The duty to avoid conflicts is mainly concerned with protecting a former or current client’s confidential information and with ensuring the effective representation of a current client. The duty of commitment entails that, subject to law society rules, a lawyer or law firm as a general rule should not summarily drop a client simply to avoid conflicts of interest. The duty of candour requires disclosure of any factors relevant to the ability to provide effective representation. A lawyer should advise an existing client before accepting a retainer that will require him to act against the client.

The present appeal concerns the risk to effective representation that arises when a lawyer acts concurrently in different matters for clients whose immediate interests in those matters are directly adverse. R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, held that the general bright line rule is that a lawyer, and by extension a law firm, may not concurrently represent clients adverse in interest without first obtaining their consent. When the bright line rule is inapplicable, the question becomes whether the concurrent representation of clients creates a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person. The bright line rule is based on the inescapable conflict of interest inherent in some situations of concurrent representation and it reflects the essence of a fiduciary’s duty of loyalty. The rule cannot be rebutted or otherwise attenuated and it applies to concurrent representation in both related andunrelated matters. However, the rule is limited in scope. It applies only where the immediate interests of clients are directlyadverse in the matters on which the lawyer is acting and it applies only to legal interests, as opposed to commercial or strategic interests. It cannot be raised tactically. It does not apply in circumstances where it is unreasonable for a client to expect that a law firm will not act against it in unrelated matters.

McKercher’s conduct fell squarely within the scope of the bright line rule. CN and the class suing CN are adverse in legal interest; CN did not tactically abuse the bright line rule; and it was reasonable in the circumstances for CN to have expected that McKercher would not concurrently represent a party suing it for $1.75 billion. McKercher’s failure to obtain CN’s consent before accepting the class action retainer breached the bright line rule. McKercher’s termination of its retainers with CN breached its duty of commitment. Its failure to advise CN of its intention to represent the class breached its duty of candour. However, McKercher possessed no relevant confidential information that could be used to prejudice CN in the class action.

Disqualification may be required to avoid the risk of improper use of confidential information, to avoid the risk of impaired representation, or to maintain the repute of the administration of justice. In this case the only concern that would warrant disqualification is the protection of the repute of the administration of justice. While a breach of the bright line rule normally attracts the remedy of disqualification, factors that may militate against it must be considered. These factors may include: (i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule or applicable law society rules. As the motion judge did not have the benefit of these reasons, the matter should be remitted to the Queen’s Bench for redetermination of the appropriate remedy.

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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see “Headnote” below “Timestamps”.

Timestamps:

Reasons for Judgment: Abella J. (McLachlin C.J. and Lebel, Cromwell and Karakatsanis JJ. concurring):

I: Introduction: 0:00:29, paragraphs 1 to 4

II: Background: 0:03:13, paragraphs 5 to 25

III: Analysis: 0:15:19, paragraphs 26 to 101

IV: Conclusion: 0:59:10, paragraphs 102 to 103

Joint Reasons Dissenting in Part: Rothstein and Wagner JJ.

I: Introduction: 0:59:45, paragraphs 104 to 107

II: Analysis: 1:02:18

II(A): There Is No Right to Strike Under Section 2(d) of the Charter: 1:02:20, paragraphs 108 to 109

II(A)(1): The Historical Right to Strike That the Majority Invokes Does Not Justify Constitutionalizing the Modern, Statutory Right to Strike: 1:03:44, paragraphs 110 to 113

II(A)(2): Courts Must Demonstrate Deference in the Field of Labour Relations: 1:05:24, paragraphs 114 to 124

II(A)(3): The Court Must Not Constitutionalize Particular Political Positions in Labour Relations: 1:13:17, paragraphs 125 to 127

II(A)(4): The Right to Strike Is Not an Indispensable Component of Collective Bargaining as Defined by This Court: 1:16:32, paragraphs 128 to 136

II(A)(5): This Court Should Not Depart From Its Precedents in This Case: 1:22:06, paragraphs 137 to 149

II(A)(6): International Law Is Not Determinative of the Content of Section 2(d) of the Charter: 1:28:24, paragraphs 150 to 160

II(B): The PSESA Does Not Violate Section 2(d) of the Charter: 1:33:40, paragraphs 161 to 173

II(C): The PSESA Does Not Violate Section 2(b) of the Charter: 1:41:02, paragraph 174

II(D): The Trade Union Amendment Act, 2008, S.S. 2008, c. 26, Does Not Violate Section 2(d) of the Charter: 1:41:42, paragraph 175

III: Conclusion: 1:42:12, paragraph 176

Headnote provided by the Supreme Court of Canada:

In December, 2007, the newly elected Government of Saskatchewan introduced two statutes: The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (PSESA), and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26, which became law in May, 2008. The PSESA is Saskatchewan’s first statutory scheme to limit the ability of public sector employees who perform essential services to strike. It prohibits unilaterally designated “essential services employees” from participating in any strike action against their employer. These employees are required to continue the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement. No meaningful mechanism for resolving bargaining impasses is provided.

The Trade Union Amendment Act, 2008 changes the union certification process by increasing the required level of written support and reducing the period for receiving written support from employees. It also changes the provisions dealing with communications between employers and their employees.

In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESA and The Trade Union Amendment Act, 2008. The trial judge concluded that the right to strike was a fundamental freedom protected by s. 2(d) of the Canadian Charter of Rights and Freedoms and that the prohibition on the right to strike in the PSESA substantially interfered with the s. 2(d) rights of the affected public sector employees. He also found that the absolute ban on the right to strike in the PSESA was neither minimally impairing nor proportionate and therefore was not saved by s. 1 of the Charter. The declaration of invalidity was suspended for one year. On the other hand, the trial judge concluded that the changes to the certification process and permissible employer communications set out in The Trade Union Amendment Act, 2008 did not breach s. 2(d).

The Saskatchewan Court of Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect to the constitutionality of the PSESA. The appeal against the finding that The Trade Union Amendment Act, 2008 did not violate s. 2(d) of the Charter was dismissed.

Held (Rothstein and Wagner JJ. dissenting in part): The appeal with respect to the PSESA should be allowed. The prohibition against strikes in the PSESA substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2(d) of the Charter. The infringement is not justified under s. 1. The declaration of invalidity is suspended for one year. The appeal with respect to The Trade Union Amendment Act, 2008 is dismissed.

Per McLachlin C.J. and LeBel, Abella, Cromwell and KarakatsanisJJ.: The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collective bargaining, it is an indispensable componentof that right. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is constitutionally protected by s. 2(d).

In Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, this Court recognized that the Charter values of “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” supported protecting the right to a meaningful process of collective bargaining within the scope of s. 2(d). The right to strike is essential to realizing these values through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives. The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.

The right to strike also promotes equality in the bargaining process. This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. While strike activity itself does not guarantee that a labour dispute will be resolved in any particular manner, or that it will be resolved at all, it is the possibility of a strike which enables workers to negotiate their employment terms on a more equal footing.

In 1935, the Wagner Act was adopted in the United States, introducing a model of labour relations that came to inspire legislative schemes across Canada. This model was adopted in Canada because the federal and provincial governments recognized the fundamental need for workers to participate in the regulation of their work environment. One of the goals of the Wagner model was to reduce the frequency of strikes by ensuring a commitment to meaningful collective bargaining. The right to strike, however, is not a creature just of the Wagner model. Most labour relations models include it because the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals.

Canada’s international human rights obligations also mandate protecting the right to strike as part of a meaningful process of collective bargaining. Canada is a party to international instruments which explicitly protect the right to strike.Besides these explicit commitments, other sources confirm the protection of a right to strike recognized in international law. And strikes are protected globally, existing in many of the countries with labour laws outside the Wagner Act model.

This historical, international, and jurisprudential landscape suggests compellingly that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. The ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is, and has historically been, the irreducible minimum of the freedom to associate in Canadian labour relations.

To determine whether there has been an infringement of s. 2(d) of the Charter, the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining. The prohibition in the PSESA on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment meets this threshold and therefore amounts to a violation of s. 2(d) of the Charter.

The breach of s. 2(d) of the Charteris not justified under s. 1. The maintenance of essential public services is self-evidently a pressing and substantial objective, but the determinative issue in this case is whether the means chosen by the government are minimally impairing, that is, carefully tailored so that rights are impaired no more than necessary.

The fact that a service is provided exclusively through the public sector does not inevitably lead to the conclusion that it is properly considered “essential”. Under the PSESA, a public employer has the unilateral authority to dictate whether and how essential services will be maintained, including the authority to determine the classifications of employees who must continue to work during the work stoppage, the number and names of employees within each classification, and, for public employers other than the Government of Saskatchewan, the essential services that are to be maintained. Only the number of employees required to work is subject to review by the Saskatchewan Labour Relations Board. And even where an employee has been prohibited from participating in strike activity, the PSESA does not tailor his or her responsibilities to the performance of essential services alone. The provisions of the PSESA therefore go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.

Nor is there any access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration. Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Those public sector employees who provide essential services have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, but they do not argue for no mechanism at all.

The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the conclusion that the PSESA is not minimally impairing. It is therefore unconstitutional.

The Trade Union Amendment Act, 2008, on the other hand, does not violate s. 2(d). The changes it introduces to the process by which unions may obtain or lose the status of a bargaining representative, as well as the changes to the rules governing employer communication to employees, do not substantially interfere with freedom of association.

Per Rothstein and Wagner JJ. (dissenting in part): This Court should not intrude into the policy development role of elected legislators by constitutionalizing the right to strike under the freedom of association guarantee in s. 2(d) of the Charter. The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees and the public. Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained.

Democratically elected legislatures are responsible for determining the appropriate balance between competing economic and social interests in the area of labour relations. This Court has long recognized that it is the role of legislators and not judges to balance competing tensions in making policy decisions, particularly in the area of socio-economic policy. The legislative branch requires flexibility to deal with changing circumstances and social values. Canadian labour relations is a complex web of intersecting interests, rights and obligations, and has far-reaching implications for Canadian society. It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives. The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches.

Constitutionalizing a right to strike restricts governments’ flexibility, impedes their ability to balance the interests of workers with the broader public interest, and interferes with the proper role and responsibility of governments. Constitutionalizing a right to strike introduces great uncertainty into labour relations: it will make all statutory limits on the right to strike presumptively unconstitutional. By constitutionalizing a broad conception of the right to strike, the majority binds the governments’ hands and limits its ability to respond to changing needs and circumstances in the dynamic field of labour relations.

Constitutionalizing a right to strike enshrines a political understanding of the concept of “workplace justice” that favours the interests of employees over those of employers and even over those of the public. While employees are granted constitutional rights, constitutional obligations are imposed on employers. Employers and the public are equally entitled to justice: true workplace justice looks at the interests of all implicated parties. In the public sector, strikes are a political tool. The public expects that public services, and especially essential services, will be delivered. Thus unions attempt to pressure the government to agree to certain demands in order that these services be reinstated. Public sector labour disputes are unique in that the government as employer must take into account that any additional expenditures incurred to meet employee demands will come from public funds.

It is incorrect to say that without the right to strike a constitutionalized right to bargain collectively is meaningless. The threat of work stoppage is not what motivates good faith bargaining. It is the statutory duty, and after Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, the constitutional duty, not the possibility of job action, that compels employers to bargain in good faith. The statutory right to strike allows both employers and employees to exercise economic and political power. Now by constitutionalizing only the ability of employees to exert such power, the majority disturbs the delicate balance of labour relations in Canada and impedes the achievement of true workplace justice.

The conclusion that the right to strike is an indispensable component of collective bargaining does not accord with recent jurisprudence. There is nothing in the concept of collective bargaining as it was defined by this Court in Health Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, that would imply that employees have a constitutional right to strike and that employers have a constitutional obligation to preserve the jobs of those employees. The threshold for overturning prior judgments is high. While the s. 2(d) jurisprudence has developed since the Labour Trilogy, neither this development, nor any change in the circumstances of Canadian labour relations justifies a departure from precedent. If anything, developments in the law support a finding that the right to freedom of association does not require constitutionalizing the right to strike. This is because recent s. 2(d) jurisprudence has already established a right to meaningful, good faith collective bargaining.

International bodies disagree as to whether the right to strike is protected under international labour and human rights instruments. The current state of international law on the right to strike is unclear and provides no guidance in determining whether this right is an essential element of freedom of association.

A right to strike is not required to ensure the constitutional guarantee of freedom of association. Therefore, the PSESA, which restricts the ability of public sector workers who provide essential services to strike, does not violate the right to meaningful collective bargaining protected under s. 2(d) of the Charter. The PSESA’s controlled strike regime does not render effectively impossible, nor substantially interfere with, the ability of associations representing affected public sector employees to submit representations to employers and to have them considered and discussed in good faith. The PSESA facilitates consultation between employers and unions regarding the designation of essential services and the evidence in this case demonstrates that good faith collective bargaining took place. A violation of s. 2(d) of the Chartercannot be founded simply on allegations that the legislation does not provide an adequate dispute resolution process; s. 2(d) does not entail such a right. Moreover, the goal of strikes is not to ensure meaningful collective bargaining, but instead to exert political pressure on employers. Finally, the statutory balance struck by the Government of Saskatchewan is eminently reasonable. Canadian federal and provincial governments have made a constitutional commitment “to provid[e] essential public services of reasonable quality to all Canadians” (Constitution Act, 1982, s. 36(1)(c)). As a result, the Government of Saskatchewan cannot subject itself to arbitral awards that could make it unaffordable to deliver on its undertaking. It has devised a particular legislative framework in order to safeguard the continued delivery of essential services to the community during labour disputes. This Court should defer to the government’s policy choices in balancing the interests of employers, employees, and the public.

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View Details

See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

Listen on 1.25x, 1.5x, 1.75x, or 2x playback speeds for faster “reading”.

The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Reasons for Judgment: Brown J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)

I: Overview: 0:00:26, paragraphs 1 to 5

II: Facts: 0:03:19, paragraphs 6 to 7

II(A): March 19, 2015: 0:03:42, paragraphs 8 to 14

II(B): April 7, 2015: 0:06:54, paragraphs 15 to 18

III: Issues: 0:08:45, paragraph 19

IV: Analysis: 0:09:16

IV(A): March 19, 2015: 0:09:19, paragraph 20

IV(A)(1): Detention: 0:09:46, paragraphs 21 to 23

IV(A)(2): R. v. Moran: 0:11:42, paragraphs 24 to 28

IV(A)(3): Applying Grant to the Events of March 19, 2015: 0:13:46

IV(A)(3)(a): The Circumstances Giving Rise to the Encounter: 0:13:51, paragraphs 29 to 33

IV(A)(3)(b): The Nature of the Police Conduct: 0:16:36, paragraph 34

IV(A)(3)(b)(i): Actions and Language of the Police: paragraphs 35 to 40

IV(A)(3)(b)(ii): The Use of Physical Contact: paragraphs 41 to 42

IV(A)(3)(b)(iii): The Presence of Others: paragraphs 43 to 44

IV(A)(3)(b)(iv): The Place and Duration of the Encounter: paragraphs 45 to 51

IV(A)(3)(c): The Particular Circumstances of the Accused: 0:30:35, paragraphs 52 to 53

IV(A)(3)(c)(i): Youth: paragraph 54

IV(A)(3)(c)(ii): Race: paragraphs 55 to 59

IV(A)(3)(c)(iii): Level of Sophistication: paragraphs 60 to 62

IV(A)(4): Conclusion Regarding the Encounter of March 19, 2015: 0:37:17, paragraphs 63 to 64

IV(B): April 7, 2015: 0:39:02, paragraphs 65 to 67

IV(B)(1): The Purpose of Section 10(b) and the Sinclair Framework: 0:40:23, paragraphs 68 to 79

IV(B)(2): The Need for a Second Consultation on April 7, 2015: 0:50:25, paragraphs 80 to 87

IV(B)(3): Conclusion on Breach of Section 10(b) on April 7, 2015: 0:56:25, paragraph 88

IV(C): Section 24(2) of the Charter: 0:56:52, paragraphs 89 to 92

IV(C)(1): Seriousness of the Charter‑Infringing Conduct: 1:00:25, paragraphs 93 to 95

IV(C)(2): Impact of the Breaches on the Charter‑Protected Interests of the Accused: 1:02:02, paragraphs 96 to 97

IV(C)(3): Society’s Interest in the Adjudication for the Case on its Merits: 1:03:31, paragraphs 98 to 100

IV(C)(4): Admission of the Evidence Would Bring the Administration of Justice Into Disrepute: 1:05:22, paragraphs 101 to 102

V: Conclusion: 1:06:09, paragraph 103

Joint Dissenting Reasons: Côté and Rowe JJ. (Wagner C.J. and Moldaver J. concurring)

I: Introduction: 1:06:22, paragraph 104

II: Facts and Decisions Below: 1:06:58, paragraphs 105 to 117

III: Analysis: 1:12:42, paragraph 118

III(A): Mr. Lafrance Was Not Detained Within the Meaning of Sections 9 and 10(b) of the Charter on March 19, 2015: 1:13:18, paragraphs 119 to 127

III(A)(1): Circumstances Giving Rise to the Encounter: 1:17:49, paragraphs 128 to 131

III(A)(2): Police Conduct: 1:20:08, paragraphs 132 to 133

III(A)(2)(a): Actions and Language of Police: 1:21:04, paragraphs 134 to 136

III(A)(2)(a)(i): Execution of the Search Warrant: paragraphs 137 to 141

III(A)(2)(a)(ii): Ride to the Police Station: paragraphs 142 to 144

III(A)(2)(a)(iii): Interview: paragraphs 145 to 146

III(A)(2)(a)(iv): Collection of Physical Evidence: paragraphs 147 to 149

III(A)(2)(b): Physical Contact: 1:28:46, paragraphs 150 to 151

III(A)(2)(c): Presence of Others: 1:29:31, paragraphs 152 to 153

III(A)(2)(d): Place and Duration of the Encounter: 1:30:52, paragraphs 154 to 156

III(A)(2)(e): Summary: 1:33:10, paragraphs 157 to 158

III(A)(3): Particular Circumstances of the Individual: 1:34:17, paragraphs 159 to 163

III(A)(4): Conclusion: 1:37:01, paragraph 164

III(B): Mr. Lafrance’s Section 10(b) Right to Counsel Was Not Violated on April 7, 2015, When He Was Not Permitted a Second Consultation With Counsel: 1:37:37, paragraph 165

III(B)(1): Legal Principles: 1:38:04, paragraphs 166 to 173

III(B)(2): Application to the Case: 1:41:40, paragraphs 174 to 187

III(C): Whether or Not Mr. Lafrance’s Right to Counsel Was Violated on March 19, 2015, Such That His Statements and Other Evidence Obtained Should Be Excluded Under Section 24(2): 1:48:58, paragraphs 188 to 193

IV: Conclusion: 1:51:39, paragraphs 194

Headnote provided by the Supreme Court of Canada:

The police suspected that L might have been involved in the death of an individual. Two days after the death, a team of armed police officers entered L’s home to execute a search warrant. L was a 19‑year‑old recent high school graduate, was Indigenous, had had minimal police exposure and was of much smaller stature than the officers. The officers awoke him and ordered him to dress and leave the premises. He was led to a police officer who asked him to identify himself and to come to the police station to provide a statement regarding the alleged murder. The police drove him to the police station, took him to a secure environment and interviewed him for over three hours. Approximately three weeks later, the police arrested L for murder. That day, after allowing him to call Legal Aid, they interviewed him. Several hours into the interview, L asked to call his father because that would be his only chance of getting a lawyer and because Legal Aid told him to get a lawyer before he continued talking. The police refused the request and pushed for answers. L eventually confessed to killing the victim.

At trial, L sought to exclude his confession by arguing that the police had detained him on the day of the execution of the warrant and breached his right to counsel pursuant to s. 10(b) of the Charter on the day of the execution of the warrant and on the day of his arrest. The trial judge admitted the evidence, finding that L had not been detained on the day of the execution of the warrant, and the police were not required to allow him a second opportunity to call a lawyer on the day of the arrest. L was convicted by a jury of second‑degree murder. The majority of the Court of Appeal allowed his appeal, excluded the evidence under s. 24(2) of the Charter and ordered a new trial.

Held (Wagner C.J. and Moldaver, Côté and Rowe JJ. dissenting): The appeal should be dismissed.

Per Karakatsanis, Brown, Martin, Kasirer and JamalJJ.: The police detained L on the day of the execution of the warrant and then breached s. 10(b) by failing to inform him of his right to counsel. The police committed another breach of s. 10(b) on the day of the arrest by refusing to allow L to contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was insufficient for the purposes of s. 10(b). These were serious breaches, substantially impacting L’s Charter‑protected interests, and admitting the evidence thereby obtained would bring the administration of justice into disrepute.

The test that should be applied in every instance of alleged detention by police is the test stated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692. It is comprehensive in scope and addresses the full breadth of circumstances that engage the right against self‑incrimination protected by s. 10 of the Charter, including investigative detention. Trial judges must not consider the factors in R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.). The test for detention set out in Grant and expanded in Le is objective, and it was restated to direct the inquiry to the perspective of the reasonable person in the accused’s shoes. Under this test, three factors are to be considered and balanced.

The first factor a court must consider is how the circumstances of the encounter would have been reasonably perceived by the individual — more specifically, whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling them out for focused investigation. The analysis properly begins at the moment the encounter itself begins. In the instant case, on the day of the execution of the warrant, it is inconceivable that a reasonable person in L’s shoes — woken and confronted by armed police officers in his home telling him to leave — would believe that the police had arrived to provide general assistance, maintain general order or make general inquiries. The reasonable person would immediately understand that he or she is being singled out for investigation. This weighs in favour of a finding of detention. While, of course, the police were authorized by warrant and as such had legitimate reasons for the steps they took, this is not determinative of — and indeed is unlikely to affect — how a reasonable person perceives his or her interactions with the police. Indeed, the warrant itself, by authorizing the police to search L’s home, reveals a targeted investigation.

The second factor directs a court’s attention to the nature of the police conduct throughout the encounter. Specifically, their actions and language used, their use of physical contact, the place where the encounter occurred, the presence of others, and the duration of the encounter, may all play a role in shaping the perceptions of the reasonable person in the individual’s shoes. The assessment requires a broad view directed to all circumstances of the case, from which view a court should focus on the contextual factors that would affect the perception of the reasonable person in the individual’s shoes. No single consideration, including a police statement to an individual that he or she is not detained or otherwise under any obligation to cooperate or may leave, is determinative of whether a detention has occurred. The test is principally objective and therefore, rather than focusing on what was in the individual’s mind at a particular moment in time, the inquiry is into how the police behaved and, considering the totality of the circumstances, how such behaviour would be reasonably perceived.

The investigating officer’s statements to L that he was free to leave militate against a finding of detention, but they are outweighed by circumstances that support the opposite conclusion. While considerations of the physical proximity of the police to L have little if any impact, the presence of others is a significant consideration. L was in the presence of at least one police officer throughout his interaction with the police; their continued presence and supervision would tend to contribute to the perception of a reasonable person in L’s shoes that he or she was not free to decline to speak or to leave. Furthermore, this was a single, lengthy police encounter. This interaction spanned several locations and each of them have features — the overwhelming show of force in the intrusion into the home, the long ride to the police station and the secure environment for a lengthy interview — that, taken as a whole, support the view that someone in L’s position would reasonably have perceived that he or she could not leave. This supports a finding of detention.

The final factor requires a court to consider, where relevant, the individual’s age, physical stature, minority status and level of sophistication. Actual consideration of how these various characteristics might impact the reasonable view of the matter as held by someone in like circumstances is required. Youth — even the youth of early adulthood — aggravates the power imbalance between the state and the individual, making it more pronounced, evident and acute. With respect to the race of the accused, the question that must be answered is how a reasonable person of a similar racial background would perceive the interaction with the police. To answer this question, courts must take into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in Canadian society. In evaluating interactions between Indigenous people and the police, courts must be alive to (1) the relational aspect between the police and Indigenous persons, characterized as it has been by an overwhelming power imbalance and history of discrimination; and (2) the resulting possibility that their interactions would reasonably be perceived by Indigenous persons as depriving them of choice to cooperate.

In this case, L’s youth is a crucial consideration that should have received more attention. It is simply unrealistic to suggest that a reasonable 19‑year‑old will, even in the presence of police statements to the contrary, feel anything but constrained to respond positively to the request to give a statement, following immediately upon the sort of police entry into his home that occurred here. L’s Indigenous background is a factor that weighs somewhat in favour of detention, albeit not heavily as it did not appear to play a significant role in shaping his perception of his obligation to cooperate with the police. Further, L’s sophistication does not undermine the case for finding a detention. Rather, his lack of experience with the police and unfamiliarity with his Charter rights bolsters it.

All three factors weigh decisively in favour of finding that L was detained. It follows that police were required to inform him of his s. 10(b) right to counsel and to afford him the opportunity of exercising it, and breached that right by failing to do so.

Whether the police breached s. 10(b) of the Charterby refusing to allow a further consultation with a lawyer requires an application of the test in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. As explained in Sinclair, the purposes of s. 10(b) include to inform the detainee not only of his rights and obligations under the law (informational component) but, equally and if not more important, to allow him to obtain advice as to how to exercise those rights (implementational component). This latter component implicitly includes a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. While a single consultation with a lawyer is constitutionally sufficient, the implementational component of s. 10(b) imposes upon police a further obligation to provide a detainee with a reasonable opportunity to consult counsel again if a change in circumstances or a new development suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation. Three non‑exhaustive categories of exceptional circumstances triggering this duty were identified in Sinclair: (1) the police invite the accused to take part in non‑routine procedures that counsel would not consider at the time of the initial consultation; (2) there is a change in jeopardy that could affect the adequacy of the advice received during the initial consultation; and (3) there is reason to question the detainee’s understanding of his rights.

The third category broadly covers circumstances where the detainee may not have understood the initial s. 10(b) advice of his right to counsel, which imposes on the police a duty to give him a further opportunity to talk to a lawyer. The inquiry is into circumstances, stated broadly, and an inquiry into whether a detainee understood that he or she could remain silent is not sufficient. It is only by ensuring that detainees obtain legal advice that accounts for the particular situation they face, conveyed in a manner they can understand, that s. 10(b) can meaningfully redress the imbalance of power between the state (whose agents know the detainee’s rights) and the detainee (who may not). It is uncontroversial that the purpose of s. 10(b) is to mitigate the imbalance between the individual and the state. Investigating officers and reviewing courts must be alive to the possibility that a detainee’s vulnerabilities, which may relate to gender, youth, age, race, mental health, language comprehension, cognitive capacity or other considerations, coupled with developments that may occur in the course of police interrogation, will have rendered a detainee’s initial legal advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police.

On the day of L’s arrest, the police fulfilled the informational component of s. 10(b) and initially at least satisfied the implementational component upon arrival at the police station. While the police did not employ any new or unusual investigative techniques and there was no change in jeopardy during the interview, there was ample reason to question L’s understanding of his s. 10(b) right. His confusion was an objective indicator that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. There were also clear signs that either the legal advice he obtained was incorrect, or he did not understand how his s. 10(b) rights applied to his current circumstances. The concern that should reasonably have arisen in the mind of the investigating officer that L may not have understood his rights and how to exercise them is affirmed, if not heightened, when considered in light of L’s particular characteristics such as his youth, his Indigenous background and his level of sophistication. The police breached his right to counsel by refusing to provide him with another opportunity to consult with a lawyer despite there being reason to conclude that he had not understood his s. 10(b) advice, even after having spoken with Legal Aid.

The evidence obtained as a result of the breaches of L’s Charter rights must be excluded as the admission of the evidence would bring the administration of justice into disrepute. The two breaches were serious and had a correspondingly significant impact on his s. 10(b) rights. This presents a strong case for exclusion of the evidence. On the other hand, society’s interest favours admission of the evidence, but not strongly. Taken cumulatively, the seriousness of the Charterinfringing conduct and the impact of the breaches on L’s Charter‑protected interests overwhelms the moderate impact on society’s interest in the truth‑seeking function of the criminal trial process.

Per Wagner C.J. and Moldaver, Côté and Rowe JJ. (dissenting): The appeal should be allowed and L’s conviction for second degree murder restored. L was not detained on the day of the execution of the warrant, nor was his s. 10(b) right to counsel violated on the day of his arrest, when he was not permitted a second consultation with counsel.

The disagreement with the majority that L was detained by police on the day of the execution of the warrant turns on three key points. First, a deferential approach to the trial judge’s findings of fact leads to the conclusion that police did not engage in coercive behaviour in their interactions with L that day. Second, the perspective of a reasonable person in the particular circumstances of the individual must not be overemphasized because to do so provides too little guidance to police in determining whether they have psychologically detained someone in carrying out their regular duties. The police must be able to avoid infringing the s. 9 Charter right against arbitrary detention when they are seeking to obtain information from an individual and they have no intention to detain him or her but a reasonable person may nonetheless conclude a detention exists. Third, while there is agreement with the majority that a finding of detention is not precluded by statements by police that an individual does not need to speak to them and is free to leave, in the instant case, greater weight is to be accorded to the police officers’ testimony that they made clear to L that he did not need to speak to them and he was free to go.

Applying the framework from Grant leads to the conclusion that L was not psychologically or otherwise detained at any point during his dealings with the police on the day of the execution of the warrant. Thus, there was no requirement that he be advised by police of his right to counsel under s. 10(b) of the Charter.

First, with respect to the circumstances giving rise to the encounter, the trial judge did consider the context in which police first interacted with L and its relevance to whether or not he was detained. He indicated that the search warrant was executed professionally and disclosed no signs of unnecessary coercion. While a reasonable person in L’s position would have felt singled out for investigation, this did not turn the encounter into a detention.

Next, regarding the police conduct, there is no basis to contradict the trial judge’s conclusion that L was not subject to psychological detention. The police made statements on several occasions that L was under no obligation to cooperate and he was free to leave at any time, and their conduct did not undermine their statements. A careful and deferential review of the record requires a rejection of the factors that, according to the majority, outweigh the police statements that L was free to go. The conduct of the police in relation to the execution of the search warrant shows no evidence giving rise to an impression of control over the person. There is no credible evidence that police gave orders or closely monitored L for purposes other than the execution of the search warrant. As for the ride to the police station, the trial judge’s factual findings about the police conduct during that time and his finding that L chose this option also do not militate in favour of a finding of detention. Further, the trial judge’s findings indicate that police avoided anything akin to accusatory interrogation. Moreover, the evidence demonstrates that L was keen to collaborate. As to physical contact, there is agreement with the majority that there was no evidence of physical contact or oppressive proximity that could support a finding of psychological detention. With respect to the presence of others, there is disagreement with the majority that this was a significant consideration because this factor refers to witnesses, not police officers, and, in any event, the presence of other police officers is of no consequence, given how the police conducted themselves. Finally, the interview took place at the police station and, while its duration of about three and a half hours was lengthier than generally occurs in non-accusatory sessions, having regard to the conversational interview style and the absence of any confrontation, there is no basis to differ from the trial judge’s conclusion that its length does not suffice to constitute the basis of a psychological detention.

Finally, turning to L’s particular circumstances, the trial judge acknowledged his youth, Indigenous background, lack of experience, and small stature. These factors are all material — without being determinative — in assessing whether police undermined statements that he was free to go. There is no evidentiary support for the majority’s assertion that the execution of the search warrant was conducted in a manner that would make a reasonable person in L’s position feel detained. L’s objective personal characteristics, although significant to the inquiry, do not turn the tide. Overall, the trial judge’s findings of fact confirm what is otherwise objectively ascertainable: a reasonable person in L’s shoes would not have perceived the police conduct as a significant deprivation of his liberty.

L claims that his right to counsel was not implemented on the day of his arrest because he had a right to a second consultation with counsel during the police interview. This issue is governed by the Court’s decision in Sinclair and its companion cases. It is not accurate to suggest that s. 10(b)’s purpose is to mitigate the imbalance between the individual and the state; rather, its purpose is to provide a detainee with an opportunity to obtain information and legal advice relevant to his or her legal situation upon detention, in order to support the detainee’s right to choose whether to cooperate with the police investigation or not.

In the instant case, L’s situation does not fit within the category of changed circumstances that requires a second consultation when there is reason to question the detainee’s understanding of his or her s. 10(b) right. There is no basis to conclude that the choice faced by L was significantly altered so as to require further advice in order to fulfill the purpose of his s. 10(b) rights. The fact that a detainee demonstrates hesitancy or concern during an interrogation is not, on its own, sufficient to establish that he or she did not have a full opportunity to consult with counsel and the detainee merely asking for a second consultation with a lawyer is not enough to support a right to a second consultation. Mere confusion or an incorrect belief in a constitutional right to have a lawyer present is also not enough to trigger a constitutional obligation under s. 10(b). A review of L’s interactions with police indicates that his choice to speak to the police investigators was both free and informed. While his request to speak to his father was an implicit request for a second consultation with a lawyer, that is not enough to support a right to a second consultation. The police officer confirmed that L understood and exercised his right to counsel. L knew the legal jeopardy that he was facing and he knew he did not have to say anything to the police officer. L’s discomfort in the face of difficult police questioning is not, on its own, grounds for a second consultation.

Even if it could be said that L was detained on the day of the execution of the warrant, the statement he subsequently provided on the day of his arrest was not sufficiently connected to that Charterbreach and there is therefore no basis on which to exclude such evidence under s. 24(2).

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Reasons for Judgment: Jamal J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. concurring)

I: Overview: 00:23, paragraphs 1 to 5

II: Facts: 03:01, paragraphs 6 to 12

III: Judgments Below: 05:40

III(A): Supreme Court of British Columbia, 2018 BCSC 602 (Williams J.): 05:43, paragraphs 13 to 14

III(B): Court of Appeal for British Columbia, 2021 BCCA 53, 402 C.C.C. (3d) 463 (Bauman C.J. and Fitch and Grauer JJ.A.): 06:58, paragraphs 15 to 17

IV: Relevant Statutory Provisions: 09:03, paragraph 18

V: Issues: 10:40, paragraph 19

VI: Analysis: 11:17, paragraph 20

VI(A): Unlawful Confinement: 11:33, paragraphs 21 to 22

VI(B): First Degree Murder Under Section 231(5): 12:28

VI(B)(1): First Degree Murder: 12:34, paragraphs 23 to 24

VI(B)(2): Section 231(5): A Sentencing Provision: 13:42, paragraphs 25 to 26

VI(B)(3): The Organizing Principle of Illegal Domination: 14:22, paragraph 27

VI(B)(4): “While Committing”: The Single Transaction Test: 14:57, paragraphs 28 to 30

VI(B)(5): “While Committing”: The Temporal and Causal Connection Approach: 17:34, paragraphs 31 to 34

VI(B)(6): The Single Transaction Test and the Temporal-Causal Connection Approach Involve the Same Inquiry: 20:14, paragraphs 35 to 39

VI(B)(7): Distinct Criminal Acts: 21:52, paragraph 40

VI(C): Application: 22:22, paragraph 41

VI(C)(1): Mr. McLeod Was Still Unlawfully Confined When He Escaped From the Truck and Ran for His Life: 23:05, paragraphs 42 to 48

VI(C)(2): The Appellant Murdered Mr. McLeod “While Committing” the Offence of Unlawful Confinement: 26:14, paragraphs 49 to 54

VII: Disposition: 29:30, paragraph 55

Headnote provided by the Supreme Court of Canada:

The accused and the victim were drug dealers with a mutual animosity. On the day of the victim’s murder, the accused unlawfully confined him in a moving pickup truck and repeatedly assaulted him by hitting him with a handgun. The victim jumped from the truck when it slowed to make a turn, but was then chased on foot by the accused and two accomplices. When the victim ran for his life, the accused shot him at least three times, but did not manage to kill him. As he lay wounded, the victim was shot and killed at close range by one of the accomplices.

The accused was charged with first degree murder. The Crown argued that the accused was guilty of first degree murder because the murder was planned and deliberate. Alternatively, the Crown argued that, because he murdered the victim while committing the offence of unlawful confinement, the accused was guilty of first degree murder under s. 231(5)(e) of the Criminal Code. The trial judge was not satisfied that the murder was planned and deliberate. He also found that although the victim was unlawfully confined in the truck, he had managed to escape his confinement by jumping from the truck; accordingly, because of the brief gap in time between when the victim was confined in the truck and when he was killed, the accused did not murder him while committing the offence of unlawful confinement. The accused was therefore acquitted of first degree murder but convicted of second degree murder. The Court of Appeal unanimously allowed the Crown’s appeal, set aside the conviction of second degree murder, and substituted a conviction of first degree murder. It held that the victim was still unlawfully confined when he jumped from the truck and was chased before being killed, and accordingly, the accused murdered the victim while committing the offence of unlawful confinement. It also held that the victim’s unlawful confinement in the truck was temporally and causally connected to his murder, making the entire course of conduct a single transaction.

Held: The appeal should be dismissed.

The accused is guilty of first degree murder under s. 231(5)(e) of the Criminal Code. The victim was still unlawfully confined when he escaped from the truck and ran for his life. Even though the victim was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. The accused then murdered him while unlawfully confining him. These two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of the victim that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder.

Section 231(5) of the Criminal Code provides that murder is first degree murder, irrespective of whether the murder is planned and deliberate, when the victim’s death is caused “while committing or attempting to commit” any of several listed crimes of domination. Section 231(5) does not create a substantive offence; rather, it is essentially a sentencing provision reflecting Parliament’s decision to treat murder in connection with the listed offences as involving a heightened degree of moral blameworthiness or an aggravating circumstance warranting a more severe punishment. It applies only when the offender has been found guilty of murder beyond a reasonable doubt. The organizing principle for the offences listed in s. 231(5) is that they are all crimes involving the illegal domination of victims. Parliament has treated murder committed in relation to these crimes of domination as especially serious and as warranting the exceptional punishment for first degree murder. Illegal domination is not an essential element to be proved under s. 231(5) but a principle that helps courts apply the provision purposively, so that the law develops in a principled manner.

For a murder to be committed “while committing or attempting to commit” an underlying offence listed in s. 231(5), the following elements are required: (1) an underlying crime of domination; (2) murder; (3) substantial cause; (4) no intervening act; and (5) the same transaction. The Court’s decisions have adopted two approaches to the “same transaction” element, which have been used interchangeably: the “single transaction” test and the temporal‑causal connection approach. These approaches do not involve different inquiries; they are simply different ways of addressing the “same transaction” element. The “single transaction” approach asks if the listed offence of domination and the killing all form part of one continuous sequence of events forming a single transaction. It is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a single transaction. The temporal and causal connection approach asks whether the underlying offence of domination and the murder have a close temporal and causal connection. There is a temporal connection between an underlying offence of domination and a murder when the two criminal acts are committed close together in time. There is a causal connection when there is a unifying relationship, beyond mere closeness in time, between the act of illegal domination and the act of murder, such as when the offender’s reason or motivation for the killing arises from, or is linked to, the offender’s unlawful domination of a victim. The application of either of these two approaches involves the same inquiry and will result in the same conclusion: when a single transaction is found, there will necessarily be a temporal‑causal connection, and when a temporal-causal connection is found, there will necessarily be a single transaction.

The underlying offence of domination and the killing must involve two distinct criminal acts. The underlying offence cannot be consumed in the very act of killing. If there is only one criminal act, it cannot be said that the offender exploited the domination inherent in the underlying offence with the act of killing. In such cases, the heightened moral blameworthiness required for first degree murder is absent.

Unlawful confinement occurs if, for any significant time period, a person is coercively restrained or directed contrary to their wishes so that they cannot move about according to their own inclination and desire. The person need not be restricted to a particular place or physically restrained. The restraint can be through violence, fear, intimidation or psychological or other means, and the purpose of the confinement is not relevant.

In the present case, the victim’s unlawful confinement continued when he escaped from the truck. He was coercively restrained, deprived of his liberty, and unable to move about according to his own inclination and desire. In fact, the victim was still unlawfully confined at the time of his death. The accused thus murdered him while committing the offence of unlawful confinement. The unlawful confinement and the murder were close in time, and involved an ongoing course of domination. In addition, the unlawful confinement was distinct from and not consumed by the shooting. As a result, the accused’s first degree murder conviction is justified.

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The text of the full decision can be found here.

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Timestamps:

Majority judgment: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ.

I: Introduction: 0:00:26, paragraphs 1 to 10

II: Facts: 0:04:13, paragraphs 11 to 15

II(A): Stage One: The CASP Process: 0:06:14, paragraph 16

II(B): Stage Two: The Land Use or CORE Process: 0:06:47, paragraphs 17 to 18

II(C): Stage Three: The Environmental Assessment Process: 0:08:02, paragraphs 19 to 22

II(D): Stage Four: Development of a Resort Master Plan: 0:10:04, paragraphs 23 to 43

III: Decisional History: 0:21:52

III(A): The Minister’s Rationale: 0:21:55, paragraphs 44 to 49

III(B): The Chambers Judge’s Reasons: 0:24:56, paragraphs 50 to 53

III(C): The Court of Appeal: 0:26:18, paragraphs 54 to 56

IV: Issues: 0:28:21, paragraph 57

V: Analysis: 0:28:37

V(A): Did the Minister’s Decision Violate the Ktunaxa’s Freedom of Conscience and Religion?: 0:28:40

V(A)(1): The Claim: 0:28:46, paragraphs 58 to 60

V(A)(2): The Scope of Freedom of Religion: 0:30:17, paragraphs 61 to 67

V(A)(3): Application to this Case: 0:34:24, paragraphs 68 to 75

V(B): Was the Minister’s Decision That the Crown Had Met Its Duty to Consult and Accommodate Under Section 35 of the Constitution Act, 1982 Reasonable?: 0:39:05, paragraphs 76 to 77

V(B)(1): The Legal Requirements of the Section 35 Consultation and Accommodation Process: 0:39:51, paragraphs 78 to 81

V(B)(2): Was the Minister’s Conclusion That the Consultation Process Satisfied Section 35 Reasonable?: 0:44:19, paragraphs 82 to 89

V(B)(2)(a): Failure to Properly Characterize the Right: paragraphs 90 to 94

V(B)(2)(b): Failure to Understand the Role of Knowledge Keepers: paragraphs 95 to 96

V(B)(2)(c): Treating the Constitutional Right as Weak: paragraphs 97 to 100

V(B)(2)(d): Failure to Properly Assess the Adverse Impact of the Development on the Spiritual Right: paragraphs 101 to 103

V(B)(2)(e): Inadequate Consultation on the Asserted Right: paragraphs 104 to 111

V(B)(2)(f): Failure to Accommodate the Asserted Right: paragraphs 112 to 114

VI: Conclusion: 1:03:32, paragraph 115

Concurring reasons: Moldaver and Côté JJ.

I: Overview: 1:04:00, paragraphs 116 to 120

II: Analysis: 1:07:04

II(A): Section 2(a) of the Charter: 1:07:06

II(A)(1): The Scope of Section 2(a): 1:07:10, paragraphs 121 to 123

II(A)(2): The Ability to Act in Accordance With a Religious Belief or Practice: 1:08:58, paragraphs 124 to 128

II(A)(3): The Chief Justice and Rowe J.’s Position on the Scope of Section 2(a): 1:11:57, paragraphs 129 to 131

II(A)(4): The Minister’s Decision Infringes the Ktunaxa’s Freedom of Religion Under Section 2(a) of the Charter: 1:14:32, paragraphs 132 to 134

II(B): The Minister’s Decision Was Reasonable: 1:16:36

II(B)(1): The Doré Framework: 1:16:40, paragraphs 135 to 136

II(B)(2): A Reviewing Court May Consider an Administrative Decision Maker’s Implicit Reasons: 1:17:56, paragraphs 137 to 140

II(B)(3): The Minister Was Alive to the Substance of the Ktunaxa’s Section 2(a) Right: 1:20:41, paragraphs 141 to 144

II(B)(4): The Minister Engaged in Proportionate Balancing: 1:23:17

II(B)(4)(a): Statutory Objectives: paragraph 145

II(B)(4)(b): The Minister’s Efforts to Accommodate the Ktunaxa’s Section 2(a) Claim: paragraphs 146 to 149

II(B)(4)(c): The Right to Exclude: paragraphs 150 to 155

III: Conclusion: 1:31:43, paragraph 156

Headnote provided by the Supreme Court of Canada:

The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia that they call Qat’muk. Qat’muk is a place of spiritual significance for them because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology. Glacier Resorts sought government approval to build a year‑round ski resort in Qat’muk. The Ktunaxa were consulted and raised concerns about the impact of the project, and as a result, the resort plan was changed to add new protections for Ktunaxa interests. The Ktunaxa remained unsatisfied, but committed themselves to further consultation. Late in the process, the Ktunaxa adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. After efforts to continue consultation failed, the respondent Minister declared that reasonable consultation had occurred and approved the project. The Ktunaxa brought a petition for judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion, and that the Minister’s decision breached the Crown’s duty of consultation and accommodation. The chambers judge dismissed the petition, and the Court of Appeal affirmed that decision.

Held: The appeal should be dismissed.

Per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Brown and RoweJJ.: The Minister’s decision does not violate the Ktunaxa’s s. 2(a) Charterright to freedom of religion. In this case, the Ktunaxa’s claim does not fall within the scope of s. 2(a) because neither the Ktunaxa’s freedom to hold their beliefs nor their freedom to manifest those beliefs is infringed by the Minister’s decision to approve the project.

To establish an infringement of the right to freedom of religion, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and (2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief. In this case, the Ktunaxa sincerely believe in the existence and importance of Grizzly Bear Spirit. They also believe that permanent development in Qat’muk will drive this spirit from that place.

The second part of the test, however, is not met. The Ktunaxa must show that the Minister’s decision to approve the development interferes either with their freedom to believe in Grizzly Bear Spirit or their freedom to manifest that belief. Yet the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny. The state’s duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

In addition, the Minister’s decision that the Crown had met its duty to consult and accommodate under s. 35 of the Constitution Act, 1982 was reasonable. The Minister’s decision is entitled to deference. A court reviewing an administrative decision under s. 35 does not decide the constitutional issue de novo raised in isolation on a standard of correctness, and therefore does not decide the issue for itself. Rather, it must ask whether the decision maker’s finding on the issue was reasonable.

The constitutional guarantee of s. 35 is not confined to treaty rights or to proven or settled Aboriginal rights and title claims. Section 35 also protects the potential rights embedded in as‑yet unproven Aboriginal claims and, pending the determination of such claims through negotiation or otherwise, may require the Crown to consult and accommodate Aboriginal interests. This obligation flows from the honour of the Crown and is constitutionalized by s. 35.

In this case, the Ktunaxa’s petition asked the courts, in the guise of judicial review of an administrative decision, to pronounce on the validity of their claim to a sacred site and associated spiritual practices. This declaration cannot be made by a court sitting in judicial review of an administrative decision. In judicial proceedings, such a declaration can only be made after a trial of the issue and with the benefit of pleadings, discovery, evidence, and submissions. Nor can administrative decision makers themselves pronounce upon the existence or scope of Aboriginal rights without specifically delegated authority. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. In the interim, while claims are resolved, consultation and accommodation are the best available legal tools for achieving reconciliation.

The record here supports the reasonableness of the Minister’s conclusion that the s. 35 obligation of consultation and accommodation had been met. The Ktunaxa spiritual claims to Qat’muk had been acknowledged from the outset. Negotiations spanning two decades and deep consultation had taken place. Many changes had been made to the project to accommodate the Ktunaxa’s spiritual claims. At a point when it appeared all major issues had been resolved, the Ktunaxa adopted a new, absolute position that no accommodation was possible because permanent structures would drive Grizzly Bear Spirit from Qat’muk. The Minister sought to consult with the Ktunaxa on the newly formulated claim, but was told that there was no point in further consultation. The process protected by s. 35 was at an end.

The record does not suggest, conversely, that the Minister mischaracterized the right as a claim to preclude development, instead of a claim to a spiritual right. The Minister understood that this right entailed practices which depended on the continued presence of Grizzly Bear Spirit in Qat’muk, which the Ktunaxa believed would be driven out by the development. Spiritual practices and interests were raised at the beginning of the process and continued to be discussed throughout. Nor did the Minister misunderstand the Ktunaxa’s secrecy imperative, which had contributed to the late disclosure of the true nature of the claim: an absolute claim to a sacred site, which must be preserved and protected from permanent human habitation. The Minister understood and accepted that spiritual beliefs did not permit details of beliefs to be shared with outsiders. Nothing in the record suggests that the Minister had forgotten this fundamental point when he made his decision that adequate consultation had occurred. In addition, the Minister did not treat the broader spiritual right as weak. The Minister considered the overall spiritual claim to be strong, but had doubts about the strength of the new, absolute claim that no accommodation was possible because the project would drive Grizzly Bear Spirit from Qat’muk. The record also does not demonstrate that the Minister failed to properly assess the adverse impact of the development on the spiritual interests of the Ktunaxa.

Ultimately, the consultation was not inadequate. The Minister engaged in deep consultation on the spiritual claim. This level of consultation was confirmed by both the chambers judge and the Court of Appeal. Moreover, the record does not establish that no accommodation was made with respect to the spiritual right. While the Minister did not offer the ultimate accommodation demanded by the Ktunaxa — complete rejection of the ski resort project — the Crown met its obligation to consult and accommodate. Section 35 guarantees a process, not a particular result. There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. Section 35 does not give unsatisfied claimants a veto. Where adequate consultation has occurred, a development may proceed without consent.

Per Moldaver and Côté JJ.: The Minister reasonably concluded that the duty to consult and accommodate the Ktunaxa under s. 35 of the Constitution Act, 1982 was met; however, the Minister’s decision to approve the ski resort infringed the Ktunaxa’s s. 2(a) Charter right to religious freedom.

The first part of the s. 2(a) test is not at issue in this case. The second part focuses on whether state action has interfered with the ability of a person to act in accordance with his or her religious beliefs or practices. Where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom. Religious beliefs have spiritual significance for the believer. When this significance is taken away by state action, the person can no longer act in accordance with his or her religious beliefs, constituting an infringement of s. 2(a).

This kind of state interference is a reality where individuals find spiritual fulfillment through their connection to the physical world. To ensure that all religions are afforded the same level of protection, courts must be alive to the unique characteristics of each religion, and the distinct ways in which state action may interfere with that religion’s beliefs or practices. In many Indigenous religions, land is not only the site of spiritual practices; land itself can be sacred. As such, state action that impacts land can sever the connection to the divine, rendering beliefs and practices devoid of spiritual significance. Where state action has this effect on an Indigenous religion, it interferes with the ability to act in accordance with religious beliefs and practices.

In this case, the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits Qat’muk, a body of sacred land in their religion, and that the Minister’s decision to approve the ski resort would sever their connection to Qat’muk and to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. Their religious beliefs in Grizzly Bear Spirit would become entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures. Moreover, without their spiritual connection to Qat’muk and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their beliefs and practices to future generations. Therefore, the Minister’s decision approving the proposed development interferes with the Ktunaxa’s ability to act in accordance with their religious beliefs or practices in a manner that is more than trivial or insubstantial.

The Minister’s decision is reasonable, however, because it reflects a proportionate balancing between the Ktunaxa’s s. 2(a) Charterright and the Minister’s statutory objectives: to administer Crown land and dispose of it in the public interest. A proportionate balancing is one that gives effect as fully as possible to the Charterprotections at stake given the particular statutory mandate. When the Minister balances the Charterprotections with these objectives, he must ensure that the Charterprotections are affected as little as reasonably possible in light of the state’s particular objectives.

In this case, the Minister did not refer to s. 2(a) explicitly in his reasons for decision; however, it is clear from his reasons that he was alive to the substance of the Ktunaxa’s s. 2(a)right. He recognized that the development put at stake the Ktunaxa’s spiritual connection to Qat’muk.

In addition, it is implicit from the Minister’s reasons that he proportionately balanced the Ktunaxa’s s. 2(a) right with his statutory objectives. The Minister tried to limit the impact of the development on the substance of the Ktunaxa’s s. 2(a) right as much as reasonably possible given these objectives. He provided significant accommodation measures that specifically addressed the Ktunaxa’s spiritual connection to the land. Ultimately, however, the Minister had two options before him: approve the development or permit the Ktunaxa to veto the development on the basis of their freedom of religion. Granting the Ktunaxa a power to veto development over the land would effectively give them a significant property interest in Qat’muk — namely, a power to exclude others from constructing permanent structures on public land. This right of exclusion would not be a minimal or negligible restraint on public ownership. It can be implied from the Minister’s reasons that permitting the Ktunaxa to dictate the use of a large tract of land according to their religious belief was not consistent with his statutory mandate. Rather, it would significantly undermine, if not completely compromise, this mandate. In view of the options open to the Minister, his decision was reasonable, and amounted to a proportionate balancing.

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See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Majority judgment: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.

I: Overview: 0:00:32, paragraphs 1 to 9

II: Facts: 0:04:55, paragraphs 10 to 14

III: Decisions Below: 0:08:29

III(A): Copyright Board of Canada, 2017 CanLII 152886: 0:08:32, paragraph 15

III(B): Federal Court of Appeal, 2020 FCA 100, [2021] 1 F.C.R. 374 (Pelletier, Stratas and Near JJ.A.): 0:09:13, paragraphs 16 to 18

IV: Parties’ Positions: 0:10:27

IV(A): Appellants: 0:10:30, paragraph 19

IV(B): Respondents: 0:11:00, paragraphs 20

V: Issues: 0:11:45, paragraph 21

VI: Analysis: 0:12:05

VI(A): Issue 1: What Is the Appropriate Standard of Review?

VI(A)(1): Prior Jurisprudence Needs to Be Reconsidered in Light of Vavilov: 0:12:12, paragraphs 22 to 25

VI(A)(2): Concurrent First Instance Jurisdiction Should Be Recognized as a Sixth Category of Correctness: 0:13:18, paragraphs 26 to 28

VI(A)(2)(a): Legislative Intent: 0:14:33, paragraphs 29 to 32

VI(A)(2)(b): Rule of Law: 0:16:26, paragraphs 33 to 39

VI(A)(3): Conclusion: Standard of Review: 0:20:04, paragraphs 40 to 42

VI(B): Issue 2: What Role Does the WIPO Copyright Treaty Play in the Interpretation of Section 2.4(1.1)?: 0:21:21, paragraph 43

VI(B)(1): A Treaty Is Relevant at the “Context” Stage of Statutory Interpretation: 0:21:51, paragraph 44 to 46

VI(B)(2): Courts Must Always Give Effect to the Statute’s Meaning: 0:22:52, paragraphs 47 to 48

VI(B)(3): Application: 0:23:47: paragraph 49

VI(C): Issue 3: Does Section 2.4(1.1) Entitle Authors to an Additional “Making Available” Royalty?: 0:24:46, paragraphs 50 to 52

VI(C)(1): Text and Structure: 0:26:51, paragraphs 53 to 61

VI(C)(2): Purpose of the Copyright Act: 0:32:15, paragraphs 62 to 73

VI(C)(3): Section 2.4(1.1)’s Statutory Context: Article 8: 0:38:45, paragraphs 74 to 76

VI(C)(3)(a): Article 8’s Goals: 0:40:08, paragraphs 77 to 87

VI(C)(3)(b): The Umbrella Situation: 0:45:10, paragraphs 88 to 90

VI(C)(4): What Is the Correct Interpretation of Section 2.4(1.1)?: 0:47:09, paragraphs 91 to 100

VI(C)(5): Does the Copyright Act Accord With Article 8?: 0:53:16, paragraphs 101 to 109

VI(D): Summary: 0:57:45, paragraphs 110 to 113

VII: Conclusion: 0:59:17, paragraph 114

Concurring reasons: Karakatsanis and Martin JJ.

Introduction: 0:59:29, paragraphs 115 to 119

I: The Standard of Review is Reasonableness: 1:01:26, paragraphs 120 to 135

II: Reasonableness Review: 1:08:46, paragraphs 136 to 146

III: Applying the Standard of Review in this Case: 1:11:55, paragraphs 147 to 160

IV: Disposition: 1:18:39, paragraph 161

Headnote provided by the Supreme Court of Canada:

In 1997, Canada signed the WIPO Copyright Treaty, one of two treaties negotiated for the purpose of adapting international copyright rules to new and emerging technologies. The Treaty sets out a number of protections that member countries are to provide to authors. Article 8 provides that authors of literary and artistic works shall enjoy the exclusive right to make their works available to the public in such a way that members of the public may access these works from a place and at a time individually chosen by them. In 2012, Parliament added s. 2.4(1.1) to the Copyright Act by way of the Copyright Modernization Act (“CMA”) to implement the rights and protections of the Treaty. Section 2.4(1.1) amends s. 3(1)(f) of the Copyright Act by clarifying that “communication of a work or other subject‑matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public”.

In the context of proceedings to set a tariff for online music services, the Copyright Board of Canada, which shares concurrent first instance jurisdiction over some aspects of the Copyright Act with the courts, concluded that s. 2.4(1.1) deems the act of making works available to be a separately protected and compensable activity. This meant that two royalties would be payable when a work is distributed online: (1) when it is made available online and (2) when the work is actually streamed or downloaded. The Federal Court of Appeal overturned the Board’s decision. It concluded that Parliament did not intend to create a new compensable making available right, and that, properly interpreted, s. 2.4(1.1) did not subject downloads and streams to two royalties.

Held: The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Côté, Brown, Rowe, Kasirer and Jamal JJ.: The Copyright Act does not require that users pay two royalties to access works online. The reading of s. 2.4(1.1) of the Copyright Act that is most consistent with its text, structure, purpose, and context is that s. 2.4(1.1) clarifies that (1) s. 3(1)(f) applies to on‑demand streams, and (2) a work is performed as soon as it is made available for on‑demand streaming. This interpretation is technologically neutral and allows Canada to fulfill its obligations under art. 8 of the Treaty through a combination of the performance, reproduction, and authorization rights in s. 3(1). If a work is streamed or made available for on˗demand streaming, the author’s performance right is engaged. If a work is downloaded, the author’s reproduction right is engaged. If a work is made available for downloading, the author’s right to authorize reproductions is engaged. There are no gaps in protection. If a work is downloaded or made available for downloading, s. 3(1)(f) is not engaged. If a work is made available for streaming and later streamed, s. 3(1)(f) is only engaged once.

The Board’s decision should be reviewed under the standard of correctness. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Courtrecognized five categories for correctness review. None of these categories justifies applying a correctness standard of review to situations of concurrent administrative and court first instance jurisdiction. Nevertheless, in rare and exceptional circumstances, new correctness categories can be recognized when applying reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories discussed in Vavilov. When courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute is one of those rare and exceptional circumstances where it is appropriate to recognize a new category of correctness review. Applying correctness accords with legislative intent — by conferring concurrent first instance jurisdiction courts and administrative bodies, it should be inferred that the legislature wanted to subject those decisions to appellate standards of review. Applying correctness also promotes the rule of law. First, when there is concurrent first instance jurisdiction, the legislature has expressly involved the courts in the interpretation of a statute, which necessarily carries with it the implication that, absent legislative direction to the contrary, courts will operate by their settled standards. Second, it avoids conflicting statutory interpretations, and it provides a way to manage differing decisions between courts and tribunals. Third, this correctness category can be defined with precision, as it will apply only when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.

A treaty should be considered when interpreting statutes that purport to implement the treaty. The treaty is relevant at the context stage of the statutory interpretation exercise. There is no need to find textual ambiguity in a statute before considering the treaty. Where the text permits, legislation should be interpreted so as to comply with Canada’s treaty obligations, in accordance with the presumption of conformity. However, a treaty cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature has enacted and not subordinate this to what the federal executive has agreed to internationally.

Article 8 of the Treaty forms a relevant part of the context of s. 2.4(1.1) because Parliament intended to fulfill Canada’s obligations under art. 8 through s. 2.4(1.1): the CMA’s preamble states that itwas enacted in part to implement the “norms” of the Treaty, and the wording of art. 8 and s. 2.4(1.1) is similar. The Treaty was also ratified shortly after the CMA was passed, and an explanatory memorandum placed before the House of Commons stated that the CMA was developed with a view to implementing the rights and protections of the Treaty.

The Board’s interpretation of s. 2.4(1.1) is inconsistent with its text and structure, it undermines the purpose of theCopyright Act, and it is not required by art. 8. To understand the text of s. 2.4(1.1), one must understand the basic scheme of the Copyright Act. The opening paragraph of s. 3(1) exhaustively sets out three copyright interests that authors have in their works: the right to (1) produce or reproduce a work in any material form, (2) perform a work in public, or (3) publish an unpublished work. A single activity can only engage one of the three copyright interests. When a work is downloaded, giving a user a durable copy of a work, only the author’s reproduction right is engaged. When a work is streamed, allowing a user to experience a work for a limited period of time, only the author’s performance right is engaged. Authors are entitled to royalties for use of their works when an activity engages one of the copyright interests in s. 3(1). Nothing in the text of s. 2.4(1.1) indicates that Parliament intended to allow authors to charge two royalties for a single protected activity. The Board’s interpretation is also entirely inconsistent with the Court’s holdings in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 S.C.R. 231, and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, which explained that downloads and streams are a single activity. Had Parliament intended to treat the act of making available as a new separately compensable activity, the way to do so would have been to add “making available” as a fourth copyright interest in the opening paragraph of s. 3(1), rather than as a modification to the scope of s. 3(1)(f).

The Board’s interpretation also undermines the purpose of the Copyright Actbecause it violates the principle of technological neutrality by requiring that users pay additional royalties to access works online. Distributing functionally equivalent works through old or new technology should engage the same copyright interests. What matters is what the user receives, not how the user receives it. If that new technology gives users durable copies of a work, the author’s reproduction interest is engaged. If the new technology gives users impermanent access to the work, the author’s performance right is engaged. Clear legislative intent would be needed to derogate from the principle of technological neutrality given its central importance to the scheme of the Copyright Act. Since there is no persuasive basis for concluding that Parliament intended to derogate from the principle of technological neutrality, s. 2.4(1.1) should be interpreted in a way that is technologically neutral.

Finally, while the Board correctly concluded that art. 8 of the Treaty requires that member countries give authors the right to control the act of making works available, in addition to any download or stream that might later occur, this obligation does not require the imposition of additional royalties on downloaded or streamed content. Each state can fulfill its art. 8 obligations through an explicit making available right or through a combination of pre‑existing rights. Provided that the Copyright Act gives effect to art. 8’s goals through any combination of rights, Canada will be in compliance with its obligations under art. 8.

Per Karakatsanis and Martin JJ.: The standard of review of the Board’s decision should be reasonableness. Creating a new correctness category only three years after a majority of the Court in Vavilov set out a comprehensive judicial review framework undermines Vavilov’spromise of certainty and predictability. Vavilov explicitly established a presumption of reasonableness that could only be displaced in five situations. Concurrent jurisdiction at first instance was not among them. The creation of a sixth category is simply contrary to the majority reasons in Vavilov.

Although the Court did not definitively foreclose the possibility that another category could be recognized, the establishment of new categories was explicitly reserved for possible circumstances which could not be realistically foreseen. The reasons in Vavilov were based on a thorough review of the relevant jurisprudence, including correctness cases of recent vintage, such as Rogers. It is therefore unrealistic to suggest that the Court’s own precedent represents a possible set of circumstances that it could not have contemplated. And neither legislative intent nor the rule of law can make this case rare and exceptional — to conclude otherwise sweeps aside the Court’s recently established framework governing the standard of review.

When applying the standard of reasonableness, context does not modify the standard or degree of scrutiny by the reviewing court, but it is obviously important in determining whether the decision itself is reasonable. And where the reasonableness standard applies to questions of statutory interpretation, the reviewing court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. The court does so in reference to the modern principle of statutory interpretation, under which words, policy objectives and consequences all matter. It is not a purely textual exercise.

Even on a reasonableness standard, the failure of the Board to consider the Court’s material and binding precedents or the animating themes of the Copyright Act was unreasonable. It was unreasonable for the Board to disregard the Court’s decision in Entertainment Software Association — the leading domestic authority on s. 3(1)(f). While the Board correctly pointed out that Entertainment Software Association was decided against a different legislative backdrop, three critical aspects remained the same: (i) the language of s. 3(1)(f); (ii) the Copyright Act’sfundamental distinction between performance and reproduction rights, and (iii) Parliament’s commitment to preserve technological neutrality. Had the Board meaningfully engaged with Entertainment Software Association,it would not have rendered a decision that captured downloads — a reproductive activity — within an act of communication, nor would it have effectively created two separate rights for a single activity.

The Board’s decision was also unreasonable in the context of the broader statutory scheme. First, the Board’s reasons fail to meaningfully address the duplicate royalties that would arise when a work is subsequently downloaded or streamed. This was unreasonable in light of the Court’s caution against this precise kind of layering of rights. Second, the interpretation advanced by the Board is not technologically neutral because it opens the door to duplicate royalties simply because the transaction takes place online. Without displacing Parliament’s intent, the Board could not endorse an interpretation that applied differently to diverse forms of media.

As this is not a case where the omission is a minor aspect of the interpretive context, the Board’s interpretation of s. 2.4(1.1) cannot be accepted. If correctness was the applicable standard, there would be agreement with the majority that s. 2.4(1.1) could not be read as creating a new independent right that is triggered when works are made available for downloading or on-demand streaming, nor as creating a separate tariff. Nothing in the text, context, or purpose of s. 2.4(1.1) suggests otherwise, particularly when viewed in light of the legal landscape in which it operates.

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View Details

See “Timestamps” below for a detailed breakdown of this decision’s headings and their corresponding time markers.

Listen on 1.25x, 1.5x, 1.75x, or 2x playback speeds for faster “reading”.

The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Majority Reasons: The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.

I: Introduction: 00:30, paragraphs 1 to 4

II: Facts: 01:42, paragraph 5

II(A): Pre-Charge Investigation: 01:52, paragraphs 6 to 11

II(B): Post-Charge Prosecution: 03:52, paragraphs 12 to 17

III: Judgments Below: 05:21

III(A): Hearing Committee for the Law Society of Saskatchewan, 2018 SKLSS 8 (D. Chow, J. McCuskee and E. Sorestad): 05:24, paragraphs 18 to 19

III(B): Court of Appeal for Saskatchewan, 2020 SKCA 81 (Ottenbreit, Leurer and Barrington-Foote JJ.A.): 06:33, paragraphs 20 to 25

IV: Analysis: 08:15

IV(A): Standard of Review: 08:18, paragraphs 26 to 30

IV(B): Inordinate Delay in Administrative Law: 09:58

IV(B)(1): Introduction: 10:02, paragraphs 31 to 32

IV(B)(2): The Doctrine of Abuse of Process: 11:09, paragraphs 33 to 37

IV(B)(3): Abuse of Process in Administrative Proceedings: 13:18, paragraphs 38 to 44

IV(B)(4): Calls to “Jordanize” Blencoe: 15:44, paragraphs 45 to 49

IV(B)(5): First Requirement: Whether the Delay is Inordinate: 17:34, paragraphs 50 to 51

IV(B)(5)(a): The Nature and Purpose of the Proceedings: 18:12: paragraphs 52 to 65

IV(B)(5)(a)(i): Introduction: paragraph 52

IV(B)(5)(a)(ii): Disciplinary Proceedings: paragraphs 53 to 56

IV(B)(5)(b): The Length and Causes of Delay: 20:12, paragraphs 57 to 65

IV(B)(5)(c): The Complexity of the Facts and Issues in the Case: 22:56, paragraph 66

IV(B)(6): Second Requirement: Significant Prejudice: 23:25, paragraphs 67 to 71

IV(B)(7): Conclusion: A Final Assessment: 26:10, paragraphs 72 to 73

IV(C): Remedies: 26:46

IV(C)(1): Introduction to Remedies for Abuse of Process: 26:48, paragraphs 74 to 77

IV(C)(1)(a): Internal Tribunal Procedure: paragraphs 78 to 79

IV(C)(1)(b): Mandamus: paragraphs 80 to 82

IV(C)(2): Stay of Proceedings: 29:31, paragraphs 83 to 88

IV(C)(3): Other Remedies: Reduction in Sanction and Costs: 32:55, paragraphs 89 to 91

IV(C)(3)(a): Reduction in Sanction: paragraphs 92 to 98

IV(C)(3)(b): Costs: paragraph 99

IV(C)(4): Conclusion: 37:02, paragraphs 100

V: Summary: 37:23, paragraphs 101 to 102

VI: Application to the Present Case: 38:25, paragraphs 103 to 106

VI(A): The Delay Was Long, But Not Inordinate: 39:42, paragraphs 107 to 116

VI(B): There Was No Significant Prejudice to Mr. Abrametz: 43:24, paragraph 117

VI(B)(1): Media Attention: 43:53, paragraphs 118 to 120

VI(B)(2): Practice Conditions: 45:02, paragraphs 121 to 122

VI(B)(3): The Impact on Mr. Abrametz’s Health, Family and Employees: 46:19, paragraph 123

VI(B)(4): Conclusion on the Requirement of Significant Prejudice: 46:41, paragraph 124

VI(C): Conclusion on Abuse of Process: 47:16, paragraphs 125 to 126

VII: Conclusion: 48:00, paragraph 127

Dissenting reasons (summary): Côté J.: 48:14

Headnote provided by the Supreme Court of Canada:

The Law Society of Saskatchewan brought disciplinary proceedings against one of its member lawyers in 2012. In 2018, the member was found guilty of four charges of conduct unbecoming a lawyer, and in 2019, disbarred without a right to apply for readmission for almost two years. During the disciplinary proceedings, the member applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee of the Law Society. The Court of Appeal dismissed the member’s conduct appeal but allowed his appeal of the stay decision. It granted the stay, concluding that there had been inordinate delay which resulted in significant prejudice to the member such that the public’s sense of decency and fairness would be affected and the Law Society’s disciplinary process brought into disrepute.

Held (Côté J. dissenting): The appeal should be allowed, the judgment of the Court of Appeal set aside and the matter remitted to the Court of Appeal to address the outstanding grounds of appeal.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The instant case is a statutory appeal pursuant to Saskatchewan’s The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law. Whether there has been an abuse of process is a question of law; thus, the applicable standard of review is correctness. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. There was also no proper basis for the Court of Appeal to contradict the Hearing Committee’s attribution of certain delays to the member, and no palpable and overriding error justified the Court of Appeal’s substitution of its own views for the Hearing Committee’s conclusions that there was no significant prejudice to the member. While the actions of the Law Society were not above reproach, the delay was not inordinate. There was no abuse of process.

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review.

In administrative proceedings, abuse of process is a question of procedural fairness. The Court dealt with abuse of process as it relates to administrative delay in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and recognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay. Delay may constitute an abuse of process in two ways: the fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, or, even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay.

Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process. First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case. These factors are not exhaustive, such that additional contextual factors can be considered in a particular case. Second, the delay must have directly caused significant prejudice. Prejudice is a question of fact. Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute.

When an abuse of process is found, several remedies are available. Courts and tribunals must be mindful as to appropriate remedies in the various contexts in which abuse of process can occur. Remedies for abuse of process can serve several purposes: they can compensate the applicant for the prejudice caused by the delay, serve as an incentive for the decision maker to address any problems of systemic delay, or express the court or the tribunal’s concern relating to delay in the administrative system. As the doctrine of abuse of process is broad, it can usefully be appreciated on a spectrum. Various remedies are available, up to and including a permanent stay of proceedings.

A stay of proceedings is the ultimate remedy for abuse of process, because it is final: the process will be permanently stayed. In disciplinary matters, that means that charges will not be dealt with, any complaint will go unheard and the public will not be protected. Given these consequences, a stay should be granted only in the clearest of cases, when the abuse falls at the high end of the spectrum of seriousness. The decision whether to grant a stay involves a balancing of public interests. On one hand, the public has an interest in ensuring that a tribunal established for its protection follows fair procedures, untainted by an abuse of process. On the other hand, the public has an interest in the resolution of administrative cases on the merits. A balance must be struck between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided after a public hearing. When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself whether going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted. If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice.

When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies. In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered. In the context of a disciplinary tribunal, a stay of proceedings, a reduction in sanction, or variation of an award of costs are possible remedies. This is not an exhaustive list. Various tribunals may be empowered by their enabling statutes to grant other remedies. They should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process.

Per Côté J. (dissenting): There is disagreement with the majority’s disposition. The delay in these proceedings amounted to an abuse of process, and the Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the member. Disagreement with the majority also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings, including the majority’s reframing of the test for whether administrative delay amounts to an abuse of process and its reliance on Vavilov for the proposition that appellate standards of review apply in the present case.

The Court recognized in Blencoe that inordinate delay, on its own, is a breach of procedural fairness and thus abusive. An applicant need not demonstrate significant prejudice for unfair conduct to constitute an abuse of process; this requirement applies only where a stay of proceedings is sought. Inordinate delay risks bringing the administration of justice into disrepute. For this reason alone, courts must sanction it whenever it is brought to their attention. They possess a wide range of remedial tools, including declarations, costs, orders for an expedited hearing, reductions in penalty, and stays of proceedings, to grant relief that is proportionate to the abuse of process.

The majority purportedly relies on Blencoe in articulating a three‑step test for determining whether delay in administrative proceedings amounts to an abuse of process; however, this framework rests on a mistaken understanding of the doctrine of abuse of process. Under the majority’s approach, even inordinate delay that directly causes significant prejudice is not per se abusive, as the last step of its test indicates. Not only is this proposition doctrinally flawed, but it results in an unduly elevated standard that is disproportionate to the remedies available for abusive delay, which range from a mere declaration to a stay of proceedings. The majority’s test is so onerous that it invites complacency in administrative proceedings. The Court rightly recognized in Blencoe that inordinate delay, on its own, is a breach of the duty of fairness. Prejudice is not a necessary condition for delay to be inordinate, although it may contribute to such a finding. Evidence of prejudice remains highly significant at the remedial stage, since the remedy must be proportionate to the abuse of process. This is consistent with the central principle laid down by the majority in Blencoe, namely that courts may grant a stay of proceedings only in the clearest of cases, where the applicant has demonstrated significant prejudice arising from inordinate administrative delay.

Abuse of process must be disentangled analytically from a stay of proceedings, which is but one of the remedies available at common law to redress abusive conduct. It is crucial to draw this distinction because the threshold for demonstrating abusive conduct is much lower than the one for obtaining a stay of proceedings. The Court has established stringent requirements for granting a stay of proceedings. To obtain a stay, an applicant must satisfy the following test: there must be prejudice to the fairness of the trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; there must be no alternative remedy capable of redressing the prejudice; and where it is unclear whether a stay is warranted after the first two steps, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. This test also applies to abusive delay in administrative proceedings.

The majority conflates the doctrine of abuse of process with the test for stays of proceedings, which are only a subset of the remedies that courts may order to sanction abusive conduct. The majority thus fails to distinguish between, on the one hand, the test for whether conduct amounts to an abuse of process and, on the other hand, the test for whether a stay of proceedings is warranted in the circumstances. The former is flexible and unencumbered by particular requirements; the court must simply determine whether the impugned conduct undermines adjudicative fairness or the integrity of the justice system. The latter establishes an onerous threshold that is met only in the clearest of cases, where the applicant satisfies specific, stringent requirements.

Where the applicant has demonstrated that the delay is inordinate, the next step in the analysis is for the court to determine the appropriate remedy in the circumstances. Courts possess an extensive arsenal of remedial tools to sanction and redress abusive conduct that account for the circumstances of each case, ranging from a declaration to a stay of proceedings. The choice of remedy for an abuse of process falls within the trial judge’s discretion. Applicants must satisfy a specific test to obtain a stay of proceedings, but other remedies are not subject to that test. The guiding principle in determining the appropriate remedy is proportionality. Courts must consider the nature and magnitude of the prejudice as primary factors, alongside the length and causes of the delay, in selecting a remedy proportionate to the abuse of process. As mandated by Blencoe, the applicant must demonstrate significant prejudice to obtain a stay of proceedings for inordinate delay in the administrative law context, but this standard does not apply to alternative remedies.

With respect to the applicable standard of review, the Court’s jurisprudence is clear: the question of whether an administrative decision maker has complied with its duty of fairness is subject to the standard of correctness, regardless of the existence of an appeal mechanism. There is no reason to revisit this well‑established starting point. The majority purports to clarify the standard of review applicable to questions of procedural fairness in a statutory appeal. It does so, however, without meaningfully considering Khela, the governing authority on this point of law, or any other case relating to the duty of procedural fairness. The mere reference to Vavilov, a judgment that was rendered in a different context and that excluded procedural fairness review from its purview, does not suffice to oust Khela and other directly applicable precedents.

While clarifications to the framework for determining the standard of review applicable to questions of procedural fairness are warranted, the Court should draw on its existing jurisprudence to articulate a principled approach. The standard of correctness must remain the starting point of the analysis in the context of procedural fairness review. It is for the courts to provide the legal answer to procedural fairness questions. The correctness standard applies to questions of compliance with the duty of procedural fairness as defined by the common law or by statute. However, the requirements of fairness are context‑dependent, and deference is owed to the administrative decision maker’s underlying findings of fact.

The majority’s articulation of the standard of review in the context of inordinate administrative delay cannot be agreed with. Inordinate delay constitutes an abuse of process on its own; it isthe legal standard against which an administrative body’s conduct is measured. Courts do not owe deference to an administrative decision maker’s conclusion on whether delay is inordinate and its choice of remedy for abuse of process.

In the case at bar, there is agreement with the analysis of the Court of Appeal. The delay grossly exceeded the inherent time requirements of this case; it is plainly inordinate and, as a result, abusive. This inordinate delay caused serious prejudice to the member and his employees. In these circumstances, the Court of Appeal correctly sanctioned this abuse of process by ordering that the penalty for professional misconduct, but not the convictions themselves, be set aside.

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Timestamps:

The Judgment of the Court

I: Introduction: 00:24, paragraphs 1 to 8

II: Background: 04:18, paragraphs 9 to 15

III: Analysis: 08:24, paragraphs 16 to 18

III(A): Advance Costs: 10:16

III(A)(1): Guiding Judicial Discretion: 10:19, paragraphs 19 to 24

III(A)(2): Reconciliation: 13:56, paragraphs 25 to 27

III(A)(3): The Terms of an Advance Cost Award: 16:31, paragraphs 28 to 29

III(B): The Impecuniosity Requirement: 17:48

III(B)(1): Impecuniosity and First Nations Governments: The Threshold: 17:52, paragraphs 30 to 40

III(B)(2): Assessing Pressing Needs: 24:49, paragraphs 41 to 52

III(B)(2)(a): Identifying the Pressing Needs of a First Nation Government: paragraphs 42 to 44

III(B)(2)(b): The Extent of Unfunded Pressing Needs: paragraphs 45 to 46

III(B)(2)(c): Assessing the Applicant’s Financial Resources: paragraphs 47 to 50

III(B)(2)(d): Comparing Estimated Litigation Costs and the Applicant’s Surplus Resources: paragraphs 51 to 52

III(C): Application of the Framework to This Appeal: 32:39, paragraphs 53 to 54

III(C)(1): Beaver Lake’s Pressing Needs: 34:00, paragraphs 55 to 56

III(C)(2): The Extent of Beaver Lake’s Unfunded Pressing Needs: 35:20, paragraphs 57 to 61

III(C)(3): Beaver Lake’s Financial Resources: 38:26, paragraphs 62 to 67

III(C)(4): Comparing Beaver Lake’s Estimated Litigation Costs and Surplus Resources: 41:21, paragraph 68

III(C)(5): The Fresh Evidence: 42:28, paragraphs 69 to 70

III(C)(6): The Terms of the Advance Costs Order: 43:38, paragraph 71

IV: Disposition: 44:31, paragraphs 72 to 74

Headnote provided by the Supreme Court of Canada:

Beaver Lake Cree Nation is a First Nation band whose members are beneficiaries of Treaty No. 6. In 2008, Beaver Lake sued the Crown for having improperly allowed its lands to be taken up for industrial and resource development. A 120‑day trial is scheduled to begin in January 2024. Beaver Lake says that the cost of litigation — estimated at $5 million — is well beyond its reach. It therefore brought an application for advance costs to fund its litigation.

Under the impecuniosity branch of the advance costs test, Beaver Lake contends that even though it has access to resources that could potentially fund the litigation, these resources must be applied to address other priorities, such as substantial deficits in housing and infrastructure and high levels of unemployment and social assistance. The case management judge held that Beaver Lake was impecunious and awarded it advance costs. The Court of Appeal set aside the order for advance costs, holding that there was insufficient evidence to support a finding of impecuniosity and that it was an error in principle to conclude that Beaver Lake was impecunious when it had financial resources but chose to spend them on other priorities.

Held: The appeal should be allowed.

A First Nation government that has access to resources that could fund litigation may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. Pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of that First Nation government. Accordingly, in appropriate cases, a First Nation government may succeed in demonstrating impecuniosity despite having access to resources whose value equals or exceeds its litigation costs. In the instant case, the case management judge’s findings were insufficient to conclude that Beaver Lake had satisfied the legal test for impecuniosity and the record before her was itself insufficient to support such findings. Beaver Lake’s application for advance costs must be remitted for a new hearing.

The test for advance costs is rigorous since courts must be mindful of the constraints of their institutional role. Three absolute requirements must be satisfied: impecuniosity, a prima facie meritorious case, and issues of public importance. The concept of necessity is captured by the Court’s direction that advance costs are to be ordered as a last resort, where the First Nation government genuinely cannot afford the litigation and where it is impossible to proceed with the litigation without such costs. It is open to a court to decide that a First Nation government is impecunious when its prioritization of pressing needs, properly understood, has left it unable to fund public interest litigation. This approach is sufficiently flexible to account for the realities facing First Nations governments and the importance of furthering the goal of reconciliation. A court must consider the broader context in which a First Nation government makes financial decisions, including its competing spending commitments, restrictions on the uses of its resources, and fiduciary and good governance obligations. A First Nation government may genuinely need to allocate some or all of its resources to priorities other than litigation.

The court’s analysis must be firmly grounded in the evidence and detailed proof may be required to ensure accountability over the expenditure of public funds. The court must be able to (1) identify the applicant’s pressing needs; (2) determine what resources are required to meet those needs; (3) assess the applicant’s financial resources; and (4) identify the estimated costs of funding the litigation.

The pressing needs of a First Nation should be considered from the perspective of its government that sets its priorities and is best situated to identify its needs. This will always be a fact‑specific determination. There can be no question that expenditures on basic necessities of life, including adequate housing, a safe water supply, and basic health and education services, rise to the level of a pressing need. Spending to improve standards of living, for example, to provide enhanced health and education services or to promote cultural survival, may also qualify. A court identifying the pressing needs of a First Nation government may have regard to what that government has prioritized in the past. As well, in the context of the advance costs test, judicial notice may be taken of the systemic and background factors affecting Indigenous peoples in Canadian society, insofar as they may be relevant to understanding a First Nation government’s financial situation and spending priorities.

An applicant should adduce evidence of the costs of meeting its pressing needs and the extent to which it cannot cover those costs. The amount of detail required will depend on the circumstances, including the nature of the unmet needs and any difficulties in estimating the costs of those needs. Where a First Nation government applicant has extensive assets and ongoing revenue, more detailed evidence of its financial resources is required to demonstrate impecuniosity. Conversely, in some cases, a finding of impecuniosity can be made even where the applicant does not adduce detailed evidence, either because the applicant does not have any available financial resources, or because it is obvious that its resources would be outstripped by its pressing needs.

Where an applicant has access to financial resources that could potentially be used to pay for the litigation, it bears the onus of proving that it genuinely cannot afford to pay for the litigation because it must commit those resources to address other pressing needs, and it must demonstrate that those resources are in fact being devoted to addressing those pressing needs. In all cases, because advance costs are a matter of last resort, an applicant must demonstrate that it made sufficient efforts to obtain funding from alternate sources. An applicant must also submit an up‑to‑date litigation plan so that a court can know, at least approximately, the cost of pursuing the litigation. Ultimately, after assessing the financial resources available to a First Nation government applicant, the extent to which it must commit those resources to pressing needs in priority to the litigation and the estimated cost of the litigation, a determination can be made regarding whether the applicant has surplus resources with which it may finance the litigation in whole or in part.

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Timestamps:

Joint Reasons for Judgment:Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.

I: Overview: 0:00:31, paragraphs 1 to 3

II: Background: 0:01:40

II(A): Parties: 0:01:41, paragraphs 4 to 10

II(B): TWU’s Proposed Law School: 0:04:35, paragraphs 11 to 12

II(C): The LSBC’s Decision Not to Approve TWU’s Proposed Law School: 0:05:37, paragraphs 13 to 22

III: Prior Decisions: 0:09:22

III(A): Judicial Review — 2015 BCSC 2326, 392 D.L.R. (4th) 722 (Hinkson C.J.): 0:09:25, paragraphs 23 to 24

III(B): Court of Appeal — 2016 BCCA 423, 405 D.L.R. (4th) 16 (Bauman C.J. and Newbury, Groberman, Willcock and Fenlon JJ.A.): 0:10:26, paragraphs 25 to 26

IV: Analysis: 0:11:37

IV(A): Questions on Appeal: 0:11:40, paragraphs 27 to 28

IV(B): The Scope of the LSBC’s Statutory Mandate: 0:12:26, paragraphs 29 to 47

IV(C): The Referendum Procedure Adopted by the LSBC: 0:24:34, paragraphs 48 to 50

IV(D): Reasonableness Review in the Absence of Formal Reasons: 0:26:17, paragraphs 51 to 56

IV(E): Review of the LSBC’s Decision Under the Doré/Loyola Framework: 0:29:09, paragraphs 57 to 59

IV(E)(1): Whether Freedom of Religion Is Engaged: 0:31:04, paragraphs 60 to 75

IV(E)(2): Overlapping Charter Protections: 0:37:53, paragraphs 76 to 78

IV(E)(3): Proportionate Balancing: 0:38:58, paragraphs 79 to 105

V: Disposition: 0:55:49, paragraph 106

Concurring Reasons:McLachlin C.J.

Overview: 0:56:05, paragraphs 107 to 108

1: Standard of Review: 0:56:43, paragraphs 109 to 110

2: Judicial Review of Charter-Infringing Administrative Decisions: 0:57:29, paragraphs 111 to 119

3: Does the Decision of the LSBC Limit Charter Rights?: 1:01:47, paragraphs 120 to 126

4: The Negative Impact of the Denial of Accreditation on Freedom of Religion: 1:05:48, paragraphs 127 to 134

5: The Objectives of the LSBC: 1:10:15, paragraphs 135 to 142

6: Are the Negative Impacts on the Right Proportionate to the Statutory Objective of the LSBC?: 1:13:38, paragraphs 143 to 150

7: Conclusion: 1:16:56, paragraph 151

Reasons Concurring in the Result: Rowe J.

I: Introduction: 1:17:05, paragraphs 152 to 159

II: The Jurisdiction of the Law Societies: 1:20:05, paragraphs 160 to 161

III: The Proper Approach to Charter Rights: 1:21:15, paragraphs 162 to 165

III(A): The Problem With Charter Values: 1:23:21, paragraphs 166 to 175

III(B): The Scope of Charter Rights: 1:28:30, paragraphs 176 to 177

III(B)(1): Purposive Delineation: 1:29:42, paragraphs 178 to 185

III(B)(2): Delineation Through Justification: 1:34:51, paragraphs 186 to 194

III(C): The Burden of Proof in Charter Litigation: 1:40:30, paragraphs 195 to 208

IV: Section 2(a) of the Charter: 1:50:02, paragraphs 209 to 210

IV(A): The Scope of Section 2(a) of the Charter: 1:50:31, paragraphs 211 to 220

IV(B): The Alleged Infringement of Section 2(a): 1:58:07, paragraphs 221 to 222

IV(B)(1): Sincerity: 1:59:08, paragraphs 223 to 235

IV(B)(2): Interference: 2:05:17, paragraphs 236 to 251

V: Other Charter Claims: 2:14:21, paragraph 252

VI: Application: 2:14:53, paragraphs 253 to 258

VII: Conclusion: 2:18:01, paragraph 259

Joint Dissenting Reasons:Côté and Brown JJ.

I: Introduction: 2:18:11, paragraphs 260 to 269

II: Analysis: 2:25:11

II(A): The LSBC Exercised Its Discretion for an Improper Purpose and Relied on Irrelevant Considerations: 2:25:14, paragraphs 270 to 273

II(A)(1): Limits to the Exercise of Discretion: 2:28:00, paragraphs 274 to 277

II(A)(2): The Purpose of the LSBC’s Approval Decision Is to Ensure That Individual Applicants Are Fit for Licensing: 2:31:19, paragraphs 278 to 293

II(B): The LSBC Benchers Fettered Their Discretion in a Manner Inconsistent With Their Statutory Duty: 2:44:03, paragraphs 294 to 301

II(C): The Doré/Loyola Framework: 2:49:42, paragraphs 302 to 314

II(D): The LSBC Benchers’ Decision Is an Infringement of TWU’s Section 2(a) Charter Rights: 3:00:25, paragraphs 315 to 320

II(E): Proportionality: The Infringement Was Not Proportionate: 3:04:50

II(E)(1): The LSBC Approval Decision Does Not Balance the TWU Community’s Section 2(a) Rights With a Relevant Statutory Objective: 3:04:55, paragraphs 321 to 323

II(E)(2): The LSBC Approval Decision Substantially Interferes With Freedom of Religion: 3:07:35, paragraphs 324 to 325

II(E)(3): Approving TWU’s Proposed Law School Is Not Against the LSBC’s Public Interest Mandate: 3:09:26, paragraphs 326 to 340

III: Conclusion: 3:21:02, paragraphs 341 to 342

Headnote provided by the Supreme Court of Canada:

Trinity Western University (“TWU”) is an evangelical Christian postsecondary institution that seeks to open a law school that requires its students and faculty to adhere to a religiously‑based code of conduct, the Community Covenant Agreement (Covenant), which prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman”. The Covenant would prohibit the conduct throughout the three years of law school, even when students are off‑campus in the privacy of their own homes. The Law Society of British Columbia (“LSBC”) is the regulator of the legal profession in British Columbia. The Benchers of the LSBC voted to hold a referendum of its members on the issue of the approval of TWU’s proposed law school and agreed to be bound by the results. The members voted to implement a resolution declaring that TWU’s proposed law school was not an approved faculty of law because of its mandatory Covenant. The Benchers therefore passed the resolution. TWU and V, a graduate of TWU’s undergraduate program who would have chosen to attend TWU’s proposed law school, successfully brought judicial review proceedings to the Supreme Court of British Columbia, arguing that the LSBC’s decision not to approve TWU’s proposed law school violated religious rights protected by s. 2(a) of the Charter. The Court of Appeal dismissed the appeal.

Held (Côté and Brown JJ. dissenting): The appeal should be allowed. The resolution of the LSBC to declare that TWU’s proposed law school not be approved is restored.

Per Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: The LSBC’s decision not to approve TWU’s proposed law school represents a proportionate balance between the limitation on the religious protections under s. 2(a) of the Charterand the statutory objectives that the LSBC sought to pursue. The LSBC’s decision was therefore reasonable.

The LSBC was entitled under its enabling statute to consider TWU’s admissions policies, apart from the academic qualifications and competence of individual graduates, in determining whether to approve TWU’s proposed law school under Rule 2‑27 of the Law Society Rules. The LSBC’s enabling statute requires the Benchers to consider the overarching objective of upholding and protecting the public interest in the administration of justice in determining the requirements for admission to the profession, including whether to approve a particular law school. As the governing body of a self‑regulating profession, the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference. The public interest is a broad concept and what it requires will depend on the particular context.

The LSBC in this case interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the requirement that students sign the Covenant as a condition of admission effectively imposes inequitable barriers on entry to the school and ultimately, inequitable barriers on entry to the profession. It was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means to pursue the public interest. The LSBC has an overarching interest in protecting the values of equality and human rights in carrying out its functions. Approving or facilitating inequitable barriers to the profession could undermine public confidence in the LSBC’s ability to regulate in the public interest.

Also, the LSBC Benchers were entitled to hold a referendum of members on the question of TWU’s proposed law school. Section 13 of the Legal Profession Act does not limit the circumstances in which the Benchers can elect to be bound to implement the results of such a referendum. The legal profession in British Columbia is self‑governing; the majority of Benchers are elected by the LSBC membership and make decisions on behalf of the LSBC as a whole. It is consistent with this statutory scheme that the Benchers may decide that certain decisions they take would benefit from the guidance or support of the membership as a whole. This is no less the case where a decision implicates the Charterand raises questions as to the best means to pursue the LSBC’s statutory objectives.

The LSBC was not required to give reasons formally explaining why the decision to refuse to approve TWU’s proposed law school amounted to a proportionate balancing of freedom of religion with the LSBC’s statutory objectives. Not all administrative decision‑making requires the same procedure. In this context, the vast majority of Benchers serve as elected representatives, and reached their decision by a majority vote. It is clear from the speeches that the LSBC Benchers made during their meetings that they were alive to the question of the balance to be struck. Reviewing courts may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Administrative decisions that engage the Charter are reviewed based on the framework set out in the binding precedents of the Court of Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613. Under the Doré/Loyola framework, if the administrative decision engages the Charter by limiting its protections — both rights and values — the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play and the relevant statutory mandate.

Section 2(a) of the Charter is limited, or engaged, when the claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion, and that the impugned state conduct interferes, in a manner that is more than trivial, with his or her ability to act in accordance with that practice or belief. If s. 2(a) is not engaged, there is nothing to balance. In this case, it is clear from the record that evangelical members of the TWU community sincerely believe that studying in an environment defined by religious beliefs in which members follow particular religious rules of conduct contributes to their spiritual development. Precluding the approval of TWU’s law school governed by the mandatory Covenant limits the ability of members of the TWU community to enhance their spiritual development through studying law in an environment defined by their religious beliefs. Accordingly, their religious rights were limited, and therefore engaged, by the LSBC’s decision.

Where an administrative decision engages a Charterprotection, the reviewing court should apply a robust proportionality analysis consistent with administrative law principles, instead of a literal s. 1 analysis. The administrative decision will be reasonable if it reflects a proportionate balancing of the Charter protection with the relevant statutory mandate. This approach recognizes that an administrative decision‑maker is generally in the best position to weigh the Charter protections with his or her statutory mandate in light of the specific facts of the case. It follows that deference is warranted when a reviewing court is determining whether the decision reflects a proportionate balance.

For a decision to be proportionate, it is not enough for the decision‑maker to simply balance the statutory objectives with the Charter protection in making its decision. The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives. The reviewing court must also consider how substantial the limitation on the Charter protection was compared to the benefits to the furtherance of the statutory objectives in this context.

The LSBC was faced with only two options — to approve or reject TWU’s proposed law school. Given the LSBC’s statutory mandate, approving TWU’s proposed law school would not have advanced the relevant statutory objectives, and therefore was not a reasonable possibility that would give effect to Charterprotections more fully in light of the statutory objectives.

The LSBC’s decision also reasonably balanced the severity of the interference against the benefits to its statutory objectives. The LSBC’s decision did not limit religious freedom to a significant extent because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for their spiritual growth.

On the other side of the scale, it is clear that the decision not to approve TWU’s proposed law school significantly advanced the LSBC’s statutory objectives by maintaining equal access to and diversity in the legal profession and by preventing the risk of significant harm to LGBTQ people. The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most private and personal of spaces for three years in order to receive a legal education.

Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices. Where a religious practice impacts others, however, this can be taken into account at the balancing stage. In this case, the effect of the mandatory Covenant is to restrict the conduct of others. The LSBC’s decision prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. These individuals would have to deny who they are for three years to receive a legal education. Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.

Given the significant benefits to the relevant statutory objectives and the minor significance of the limitation on the Charter rights at issue, and given the absence of any reasonable alternative that would reduce the impact on Charterprotections while sufficiently furthering those same objectives, the decision to refuse to approve TWU’s proposed law school represents a proportionate balance. The decision was reasonable.

Per McLachlin C.J.: There is agreement with the majority that the jurisdiction and decision‑making process of the LSBC are reviewable on a standard of reasonableness. Where legislatures delegate regulation of the legal profession to a law society, the law society’s interpretation of the public interest is owed deference.

There is also agreement with the majority that Charter‑infringing administrative decisions are reviewed according to the Doré/Loyola framework. This framework has two discrete steps. The reviewing court must first determine if the decision limits a Charterright, and then determine whether the limitation of the right is proportionate in light of the state’s objective, and hence is justified as a reasonable measure in a free and democratic society under s. 1 of the Charter. In most cases, the ultimate question will be whether the decision under review balances the negative effects on the right against the benefits derived from the decision in a proportionate way.

However, certain gaps and omissions in the framework must be addressed. To adequately protect the Charter right, the initial focus must be on whether the claimant’s constitutional right has been infringed. Charter values may play a role in defining the scope of rights; it is the right itself, however, that receives protection under the Charter. Also, the scope of the guarantee of the Charterright must be given a consistent interpretation regardless of the state actor, and it is the task of the courts on judicial review of a decision to ensure this. Since this is a matter of justification of a rights infringement under s. 1,the onus is on the state actor that made the rights‑infringing decision to demonstrate that the limits its decisions impose on the rights of the claimants are reasonable and demonstrably justifiable in a free and democratic society. Finally, relying on the language of deference and reasonableness as does the majority in this case may be unhelpful. Where an administrative decision‑maker renders a decision that has an unjustified and disproportionate impact on a Charterright, it will always be unreasonable.

In this case, the first step of the Doré/Loyola framework is satisfied, because the LSBC’s decision not to approve TWU’s proposed law school limits the freedom of religion of members of the TWU community. The LSBC’s denial of accreditation precludes members of the TWU community from engaging in the practice of providing legal education in an environment that conforms to their religious beliefs, deprives them of the ability to express those beliefs in institutional form, and prevents them from associating in the manner they believe their faith requires. While it may not be necessary to conduct a separate analysis for the guarantees of freedom of expression and freedom of association, the Court must include them in the ambit of the guarantee of freedom of religion.

As for the second step of the Doré/Loyola framework, the LSBC has shown its infringement of TWU’s freedom of religion to be justified under s. 1. No one suggests that there was not an objective capable of overriding the Charterright to freedom of religion. Moreover, the decision was minimally impairing. The LSBC was faced with the choice of either accrediting the law school or denying that accreditation. Therefore, the analysis comes down to the final stage of weighing the benefit achieved by the infringing decision against its negative impacts on the right.

Contrary to the majority’s analysis, the negative impacts of the LSBC’s denial of accreditation on the religious, expressive and associational rights of the TWU community are not of minor significance. If the community wishes to operate a law school, it must relinquish the mandatory Covenant it says is core to its religious beliefs, with the attendant ramifications on religious practices. However, the LSBC cannot condone a practice that discriminates by imposing burdens on LGBTQ people on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity and the enhancement of equality in the profession. It was faced with an either‑or decision on which compromise was impossible — either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices. Ultimately, the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion. This decision of the LSBC represents a proportionate balancing of freedom of religion, on the one hand, and the avoidance of discrimination, on the other. The decision was therefore reasonable.

Per Rowe J.: There is agreement with the majority that the LSBC acted within its jurisdiction when it considered the discriminatory effect of the Covenant on prospective law students at TWU. With the privilege of self‑government granted to the LSBC comes a corresponding duty to self‑regulate in the public interest. The LSBC was entitled to interpret its public interest mandate as including consideration of the effect of the Covenant on prospective law students. The fact that the Covenant is a statement of religious rules and principles does not insulate it from such scrutiny.

There is disagreement, however, with the majority’s approach to assessing whether the decision of the LSBC infringed the Charterrights raised by TWU. This appeal raises issues that call for clarification of the Doré/Loyola framework. First, when courts review administrative decisions for compliance with the Charter, Charter rights must be the focus of the inquiry — not Charter values. Charter values have no independent function in the administrative context and their scope is often undefined in the jurisprudence. This lack of clarity is an impediment to applying a structured and consistent approach to adjudicating Charter claims.

Second, the adjudication of Charter claims needs to follow a structured two‑step analysis. Under the Doré/Loyola framework, the initial burden is on the claimant to demonstrate that the decision infringes his or her Charter rights. This first step requires that the reviewing court possess a proper understanding of the scope of the rights at issue. An approach that skims over the proper delineation of rights and freedoms runs the risk of distorting the relationship between s. 1 of the Charterand the protections guaranteed by the Charter. This approach can lead to situations whereby certain rights are routinely said to be infringed only for the claimant to be told that the infringement is justified by any number of countervailing considerations. This erodes the seriousness of finding Charterviolations. It increases the role of policy considerations in the adjudication of Charter claims by shifting the bulk of the analysis to s. 1. And it distorts the proper relationship between the branches of government by unduly expanding the policy-making role of the judiciary. The result is an unstructured, somewhat conclusory exercise that ignores the framing of the Charter and departs fundamentally from the Court’s foundational Charter jurisprudence. On judicial review, as in other proceedings, Charterclaims demand analytical rigour. This starts with the correct delineation of the scope of the rights and freedoms at issue.

Once the claimant has demonstrated that an administrative decision infringes his or her Charter rights, the second step of the Doré/Loyola framework requires the state actor to demonstrate that the infringement is justified. The Doré/Loyola framework does not shift this justificatory burden onto rights claimants. The justificatory burden must remain where theCharter places it, on the state actor. For the administrative state, this is no more than what s. 1 requires.

The Doré/Loyola framework does not deviate fundamentally from the principles set out in Oakes for assessing the reasonableness of a limit on a Charterright under s. 1. All the stages of the Oakes test have a role to play in the judicial review of administrative decisions for compliance with the Charter. Often, however, the main hurdle for the state will be the final stages of the Oakes test: minimal impairment and balancing. The fact that most statutes reviewed under Oakes have failed at the minimal impairment or balancing stages does not mean that the rational connection stage and consideration of the pressing and substantial objective cease to be relevant. Similarly, in the administrative context, the fact that most decisions will be rationally connected to an identified statutory objective does not mean that the inquiry need not be carried out. It means only that this component of the analysis will often readily be met.

The main Charter right at issue in this appeal is the freedom of religion guaranteed by s. 2(a). The freedom of religion protected by s. 2(a) is premised on two principles: the exercise of free will and the absence of constraint. From this perspective, religious freedom aims to protect individuals from interference with their religious beliefs and practices. While this focus on the individual choice of believers does not detract from the communal aspect of religion, it must be underscored that religious freedom is premised on the personal volition of individual believers. Although religious communities may adopt their own rules and membership requirements, the foundation of the community remains the voluntary choice of individual believers to join together on the basis of their common faith.

The alleged infringement of s. 2(a) in this case — namely, that the decision of the LSBC interferes with the claimants’ ability to attend an accredited law school at TWU with its mandatory Covenant — does not fall within the scope of freedom of religion. The religious belief or practice at issue relates to the religious proscription of sexual intimacy outside heterosexual marriage and the importance of imposing this proscription by means of the mandatory Covenant on all students attending the proposed law school at TWU. At the first stage of the s. 2(a) analysis, it does not suffice that the claimants sincerely believe that studying in a community defined by religious beliefs contributes to their spiritual development. Rather, the claimants must show that they sincerely believe that doing so is a practice required by their religion. The question of whether a belief or practice is objectively required by official religious dogma or is in conformity with the position of religious officials is irrelevant. All that matters is that the claimant sincerely believes that their religion compels them to act, regardless of whether that line of conduct is objectively or subjectively obligatory. Much of the affidavit evidence relied upon by the majority undermines the view that the claimants have advanced a sincere belief or practice that is required by their religion. Despite this concern, it is assumed that the claimants sincerely believe in the importance of studying in an environment where all students abide by this Covenant.

At the second stage of the s. 2(a) analysis, the proper delineation of the scope of s. 2(a) comes into play. Where the protection of s. 2(a) is sought for a belief or practice that constrains the conduct of nonbelievers — those who have freely chosen not to believe — the claim falls outside the scope of the freedom. Therefore, interference with such a belief or practice is not an infringement of s. 2(a) because the coercion of nonbelievers is not protected by the Charter.

The student body at TWU is not coextensive with the religious community of evangelical Christians who attend TWU. Although TWU teaches from a Christian perspective, its statutory mandate requires that its admission policy not be restricted to Christian students. The Covenant is a commitment to enforcing a religiously‑based code of conduct, not just in respect of one’s own behaviour, but also in respect of others’, including members of other religions and nonbelievers. Given that the coercion of nonbelievers is not protected by the Charter, TWU’s claim falls outside the scope of freedom of religion as protected by s. 2(a).

Given the absence of a Charter infringement, the decision of the LSBC must be reviewed under the usual principles of judicial review rather than the Doré/Loyola framework. Reviewed under the standard of reasonableness, the decision of the LSBC will command deference if it meets the criteria set out in Dunsmuir.

The LSBC is a self‑governing entity. Therefore, with respect to process, the LSBC had discretion in determining how to carry out its duty to regulate the legal profession in the public interest. There is agreement with the majority that the LSBC’s enabling statute does not preclude the Benchers from holding a referendum or choosing to be bound by the results of such a referendum. Consequently, the procedure employed by the Benchers is not fatal to the reasonableness of their decision.

As to the substance of the decision, reasonableness does not always require the decision‑maker to give formal reasons. In some cases, a reviewing court may look to the record to assess the reasonableness of the decision. In this appeal, the range of possible outcomes was informed by the LSBC’s mandate to regulate the legal profession in the public interest and by the binary choice available to the Benchers. Given the deference owed to the LSBC, it was open to the LSBC to conclude that it should not accredit the proposed law school given the Covenant’s imposition of discriminatory barriers to admission. It was also open to the LSBC to conclude that its mandate included promoting equal access to the legal profession, supporting diversity within the bar and preventing harm to LGBTQ law students. It was in this context that the LSBC declined to accredit the proposed law school. This decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. It was therefore reasonable.

Per Côté and Brown JJ. (dissenting): Under the LSBC’s enabling statute, the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession because they meet minimum standards of competence and ethical conduct. Given the absence of any concerns relating to the fitness of prospective TWU law graduates, the only defensible exercise of the LSBC’s statutory discretion would have been to approve TWU’s proposed law school.

Under Rule 2‑27(4.1) of the Law Society Rules, the LSBC’s authority to approve law schools acts only as a proxy for determining whether a law school’s graduates, as individual applicants to the LSBC, meet the standards of competence and conduct required to become licensed. Rule 2‑27(4.1) does not grant the LSBC authority to regulate law schools or to guarantee equal access to law schools. So long as a law school’s admissions policies do not raise concerns over its graduates’ fitness to practise law, the LSBC is simply not statutorily empowered to scrutinize them. The LSBC is properly concerned with competence, not with merit. This interpretation is consistent with the purpose of the Legal Profession Act as a whole and respects the express limits to the LSBC’s rule‑making powers under s. 11 for the regulation of the legal profession and its constituent parts, extending no further than the licensing process — the doorway to the profession. Although s. 3 states the LSBC’s overarching object and duty includes upholding and protecting the public interest in the administration of justice by “preserving and protecting the rights and freedoms of all persons”, it does not empower the LSBC to police human rights standards in law schools. Any harms to marginalized communities in the context of legal education are considered by provincial human rights tribunals, by legislatures, and by members of the executive, which grant such institutions the power to confer degrees.

The LSBC violated its statutory duty by adopting the results of a referendum affecting Charterrights without engaging in the process of balancing Charterrights and statutory objectives required by the Doré/Loyola framework. The results of the referendum were adopted with no further discussionand therefore no substantive debate. The LSBC’s decision is therefore completely devoid of any reasoning. And yet, the majority of the Court has replaced the (non‑) reasons of the LSBC with its own reasons and made the outcome the sole consideration. Although such a serious error would normally require that the LSBC’s decision be quashed and returned for a proper determination, it now falls to this Court to determine the proportionate balance in this case.

The majority’s lack of rationale for insisting on a distinct framework for judicial review of Charter‑infringing administrative decisions is troubling, particularly in light of the fact that the application of the Oakes test is already context‑specific. The orthodox test — the Oakes test — must apply to justify state infringements of Charterrights, regardless of the context in which they occur. Holding otherwise subverts the promise of the Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified”. Under the Doré/Loyola framework, Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute. Section 1 of the Charter does not guarantee certain rights and freedoms subject only to the limits imposed by statutory objectives, but to limits that are “demonstrably justified in a free and democratic society”. Further, the Court has been silent on who bears the burden to justify a rights limitation in the administrative context, leaving a conspicuous and serious lacuna in the framework. The burden must rest with the state actor.

The majority’s continued reliance on values protected by the Charteras equivalent to rights is similarly troubling. Resorting to Chartervalues as a counterweight to constitutionalized and judicially defined Charterrights is a highly questionable practice. Charter values are unsourced, amorphous and, just as importantly, undefined. The majority’s preferred value of equality is, without further definition, too vague a notion on which to ground a claim to equal treatment in any and all concrete situations, such as admission to a law school. A value of equality is, therefore, a questionable notion against which to balance the exercise by the TWU community of its Charter‑protected rights.

The LSBC’s decision not to approve TWU’s proposed law school infringes the religious freedom of members of the TWU community. The freedom of religion under s. 2(a) of the Charter, interpreted broadly and purposively, captures the freedom of members of the TWU community to expresstheir religious beliefs through the Covenant — a code of conduct protected by provincial human rights legislation — and to associate with one another in order to study law in an educational community which reflects their religious beliefs. The LSBC’s decision is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality. It is substantively coercive in nature.

The LSBC’s statutory objective in rendering an approval decision is to ensure that individual applicants are fit for licensing. Accordingly, the justification under s. 1 of the Charter of a restriction on freedom of religion requires evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school to practise law. As the fitness of future graduates of TWU’s proposed law school was not in dispute, this statutory objective cannot justify any limitations on the TWU community’s s. 2(a) rights.

Even if the LSBC’s statutory mandate had permitted the consideration of broader public interest concerns, the LSBC’s decision would not be justified, since withholding approval substantially interferes with the TWU community’s freedom of religion and approving TWU’s proposed law school was not against the public interest. Accommodating religious diversity is in the public interest, broadly understood, and approving the proposed law school does not condone discrimination against LGBTQ persons. The purpose of TWU’s admissions policy is not to exclude LGBTQ persons, or anybody else, but to establish a code of conduct which ensures the vitality of its religious community. No one group is singled out, and many others (notably unmarried heterosexual persons) would be bound by it. The unequal access resulting from the Covenant is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society. The state and state actors — not private institutions like TWU — are constitutionally bound to accommodate difference in order to foster pluralism in public life. Equating approval to condonation turns the protective shield of the Charterinto a sword by effectively imposing Charterobligations on private actors.

Accommodating diverse beliefs and values is a precondition to the secularism and the pluralism that are needed to protect and promote the Charter rights of all Canadians. State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief. Either way, state neutrality must prevail. Tolerance and accommodation of difference serve the public interest and foster pluralism. Approving TWU’s proposed law school was the only decision reflecting a proportionate balancing between Charterrights and the LSBC’s statutory objectives.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Majority Reasons: Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.

I: Overview: 0:00:35, paragraphs 1 to 14

II: Relevant Statutory Provisions: 0:10:11, paragraph 15

III: Issues: 0:19:55, paragraph 16

IV: Analysis: 0:20:15

IV(A): Statutory Interpretation of the Provisions: 0:20:18, paragraphs 17 to 18

IV(A)(1): Overview of the Impugned Provisions: 0:21:02, paragraphs 19 to 21

IV(A)(1)(a): Stage One: 0:22:05, paragraphs 22 to 29

IV(A)(1)(b): Stage Two: 0:26:03, paragraphs 30 to 33

IV(A)(1)(c): Overlap Between Section 276 Evidence and Private Records Under Section 278.1: 0:27:04, paragraph 34

IV(A)(2): What Is a Record?: 0:27:43, paragraphs 35 to 37

IV(A)(2)(a): Two Groups of Records: 0:29:26, paragraphs 38 to 42

IV(A)(2)(b): Identifying Non-Enumerated Records: 0:31:23, paragraph 42

IV(A)(2)(b)(i): Text and Scheme of the Record Screening Regime: 0:32:01, paragraphs 43 to 53

IV(A)(2)(b)(i)(1): Personal Information

IV(A)(2)(b)(i)(2): Reasonable Expectation of Privacy

IV(A)(2)(b)(i)(3): Factors in Section 278.92(3)

IV(A)(2)(b)(ii): Framework to Apply: 0:39:12, paragraphs 54 to 60

IV(A)(2)(b)(ii)(1): Content

IV(A)(2)(b)(ii)(2): Context

IV(A)(2)(b)(iii): Specific Types of Records: 0:44:01, paragraphs 61 to 67

IV(A)(2)(b)(iii)(1): Communications

IV(A)(2)(b)(iii)(2): Records of a Sexual Nature (Not Covered by Section 276)

IV(A)(2)(b)(iv): Summary of the Analytical Process: 0:47:49, paragraphs 68 to 72

IV(A)(3): Who Do the Impugned Provisions Apply to?: 0:49:44, paragraphs 68 to 72

IV(A)(4): When Is Evidence “Adduced” Such That an Application Is Required?: 0:51:45, paragraphs 76 to 81

IV(A)(5): What Is the Appropriate Timing of an Application?: 0:54:50, paragraphs 82 to 86

IV(A)(6): What Is the Scope of Complainant Participation?: 0:57:58, paragraphs 87 to 90

IV(A)(6)(a): Complainant’s Receipt of Application: 0:59:29, paragraphs 91 to 96

IV(A)(6)(b): Complainant’s Attendance and Submissions: 1:01:45, paragraphs 97 to 99

IV(A)(6)(c): Complainant’s Ability to Cross-Examine and Lead Evidence: 1:02:48, paragraphs 100 to 102

IV(A)(7): Are Motions for Direction Permitted, and Can Complainants Participate?: 1:03:53, paragraphs 103 to 105

IV(A)(8): Do Complainants Have Appeal Rights Under the Impugned Provisions?: 1:05:23, paragraphs 106 to 110

IV(B): Charter Analysis: 1:07:18, paragraphs 111 to 112

IV(B)(1): Analytical Framework: 1:08:07, paragraphs 113 to 115

IV(B)(2): Key Principles of Section 7 of the Charter: 1:10:27, paragraphs 116 to 122

IV(B)(3): Key Principles of Section 11(d) of the Charter: 1:14:15, paragraphs 123 to 125

IV(B)(4): Section 278.92 — Threshold for Admissibility: 1:15:36, paragraph 126

IV(B)(4)(a): Section 278.92 Does Not Impair Fair Trial Rights: 1:16:19, paragraphs 127 to 133

IV(B)(4)(b): Section 278.92 Procedure Is Not Overbroad: 1:21:21, paragraphs 134 to 143

IV(B)(5): Section 278.93 — Stage One Application to Hold Hearing: 1:26:33

IV(B)(5)(a): General Principles: The Right to Silence and the Principle Against Self‑Incrimination: 1:26:40, paragraphs 144 to 148

IV(B)(5)(b): No Self-Incrimination Under Section 11(c) Due to Testimonial Compulsion: 1:28:50, paragraphs 149 to 150

IV(B)(5)(c): No Defence Disclosure Undermining Right to a Fair Trial: 1:29:52, paragraphs 151 to 153

IV(B)(5)(c)(i): The Right to Silence Does Not Entail an Absolute Rule Against “Defence Disclosure”: 1:31:09, paragraphs 154 to 163

IV(B)(5)(c)(ii): The P. (M.B.) Concern About Crown Advantage Does Not Apply: 1:35:55, paragraphs 164 to 170

IV(B)(6): Section 278.94 — Stage Two Hearing Procedure: 1:40:08, paragraphs 171 to 172

IV(B)(6)(a): No Deprivation of Relevant Evidence: 1:41:16, paragraphs 173 to 175

IV(B)(6)(b): No Impact on Prosecutorial Independence: 1:43:01, paragraphs 176 to 180

IV(B)(6)(c): No Violation of the Right to Cross-Examine: 1:45:55, paragraphs 181 to 190

IV(B)(7): Final Conclusions Regarding Constitutionality: 1:52:58, paragraph 191

V: Disposition: 1:53:20, paragraphs 192 to 193

VI: Costs: 1:53:47, paragraphs 194 to 196

Dissenting (in part) reasons: Brown J.:

I: Introduction: 1:54:51, paragraphs 197 to 205

II: Legislative Background: 2:02:12, paragraphs 206 to 211

III: Analysis: 2:06:00

III(A): Preliminary Points Regarding the Majority’s Analytical Structure: 2:06:02, paragraphs 212 to 225

III(B): The Records Screening Regime Limits the Accused’s Rights Under Sections 11(c), 11(d) and 7 of the Charter: 2:15:22

III(B)(1): Overbreadth: 2:15:30, paragraph 226

III(B)(1)(a): “Record”: 2:15:53, paragraphs 227 to 239

III(B)(1)(b): “Adduce”: 2:26:00, paragraphs 240 to 241

III(B)(1)(c): Conclusion on Overbreadth: 2:27:12, paragraphs 242 to 246

III(B)(2): Disclosure of Detailed Particulars of Evidence: 2:30:01, paragraphs 247 to 262

III(B)(3): Restrictions on Cross‑Examination of Crown Witnesses: 2:43:12, paragraphs 263 to 286

III(B)(4): All Private Records Are Presumptively Inadmissible by the Defence but Presumptively Admissible by the Crown: 3:01:20, paragraphs 287 to 290

III(B)(5): Heightened Standard of “Significant Probative Value”: 3:03:47, paragraphs 291 to 297

III(C): The Limits on the Accused’s Rights Under Sections 11(c), 11(d) and 7 Are Not Demonstrably Justified: 3:08:27

III(C)(1): Overview of the Section 1 Analysis: 3:08:36, paragraphs 298 to 301

III(C)(2): Pressing and Substantial Objective: 3:10:00, paragraph 302

III(C)(3): Rational Connection: 3:10:42, paragraphs 303 to 304

III(C)(4): Minimal Impairment: 3:11:45, paragraphs 305 to 311

III(C)(5): Proportionality of Effects: 3:16:19, paragraphs 312 to 317

IV: Conclusion: 3:22:11, paragraphs 318 to 320

Dissenting (in part) reasons: Rowe J.:

I: Overview: 3:24:09, paragraphs 321 to 327

II: There is a Constitutional Right to a Fair Trial: 3:27:30, paragraph 328

II(A): Introduction to the Right to a Fair Trial: 3:27:38, paragraphs 329 to 332

II(B): Scope of Rights Protected by Section 11(d): 3:28:39, paragraphs 333 to 335

II(B)(1): Right to Be Presumed Innocent Until Proven Guilty: 3:29:31, paragraphs 336 to 338

II(B)(2): Right to Fair Procedures: 3:29:58, paragraph 339

II(B)(3): Right to Cross-Examine Crown Witnesses Without Significant and Unwarranted Restraint: 3:30:18, paragraphs 340 to 341

II(B)(4): Right to Silence Before a Case to Meet Is Made Out: 3:31:14, paragraph 342

II(C): Scope of Rights Protected by Section 11(c): 3:31:38, paragraphs 343 to 344

II(D): Permissible Limits on Sections 11(c) and 11(d): 3:32:23, paragraphs 345 to 346

II(D)(1): Internal Limits: Definition of Fair Trial: 3:32:48, paragraphs 347 to 348

II(D)(2): Section 1: 3:33:27, paragraphs 349 to 352

III: A Limit on Section 11 Based on Section 7 Does Not Conform Either to the Architecture of the Charter or to the Purposes of Those Provisions, or Section 1: 3:35:06, paragraphs 353 to 356

III(A): Section 7: 3:36:48, paragraphs 357 to 361

III(B): The Content of the Principles of Fundamental Justice in Section 7: 3:38:42, paragraph 362

III(B)(1): The Principles of Fundamental Justice Have Substantive and Not Only Procedural Content: 3:39:18, paragraphs 363 to 364

III(B)(2): Difficulties Identifying the Principles of Fundamental Justice: 3:40:04, paragraphs 365 to 372

III(C): How Do the Principles of Fundamental Justice Operate to Limit Section 7 Rights?:

III(C)(1): The Methodological Approach for How the Principles of Fundamental Justice Operate to Limit Section 7 Rights Is Inconsistent: 3:44:14,paragraphs 373 to 376

III(C)(1)(a): One Party’s Charter Rights vs. Other Charter Rights: 3:45:53, paragraphs 377 to 383

III(C)(1)(b): Charter Rights vs. Charter Values: 3:49:08, paragraphs 384 to 389

III(C)(1)(c): Charter Rights vs. Societal Interests: 3:52:13, paragraphs 390 to 399

III(C)(2): Conclusions on Section 7: 3:55:51, paragraph 400

III(D): The Principles of Fundamental Justice Under Section 7 Are Being Relied Upon to Limit Section 11: 3:56:30

III(D)(1): How Permissible Internal Limits on Section 7 Rights Are Being Relied on to Introduce Limitations Into Section 11: 3:56:27, paragraphs 401 to 408

III(D)(2): Confusion Whether to Proceed First Under the Specific (Section 11) or the General (Section 7): 4:00:24, paragraphs 409 to 411

III(D)(3): The Specific Example of Evidence in Which a Complainant Has a Reasonable Expectation of Privacy: 4:01:54, paragraphs 412 to 421

III(E): Section 7 Cannot Operate to Limit Section 11 Rights as This Is Inconsistent With the Architecture of the Charter: 4:08:21, paragraph 422

III(E)(1): The Relationship Between Section 7 and Section 11 of the Charter: 4:08:41, paragraphs 423 to 425

III(E)(2): Limiting Section 11 on the Basis of Section 7 Is Inconsistent With the Structure of the Charter, the Purposes of Both Provisions and Section 1: 4:10:01, paragraphs 426 to 431

IV: Suggested Interpretive Approach: 4:12:35, paragraphs 432 to 437

V: Conclusion: 4:14:53, paragraphs 438

Dissenting (in part) reasons: Côté J.:

I: Overview: 4:15:20, paragraphs 439 to 441

II: Statutory Interpretation: 4:16:33

II(A): The Definition of “Record” Excludes Communications Between the Complainant and the Accused: 4:16:37, paragraph 442

II(A)(1): Text of Section 278.1: 4:17:23, paragraphs 443 to 448

II(A)(2): Legislative Context: 4:22:09, paragraphs 449 to 454

II(A)(3): Jurisprudence on the Phrase “Reasonable Expectation of Privacy”: 4:26:07, paragraphs 455 to 456

II(A)(3)(a): Meaning of “Reasonable Expectation of Privacy”: 4:27:36, paragraphs 457 to 467

II(A)(3)(b): Content‑Neutral Analysis: 4:34:35, paragraphs 468 to 473

II(A)(4): Absurd Results: 4:38:02, paragraphs 474 to 477

II(A)(5): Conclusion on the Interpretation of “Record”: 4:40:25, paragraph 478

II(B): Plain Meaning of “Adduce” Should Be Adopted: 4:40:42, paragraphs 479 to 482

III: Record Screening Regime Remains Unconstitutional: 4:43:46, paragraphs 483 to 490

IV: Disposition: 4:47:12, paragraph 491

Headnote provided by the Supreme Court of Canada:

In 2018, Parliament introduced ss. 278.92 to 278.94 (the “impugned provisions”) into the Criminal Code in an effort to remove barriers that have deterred victims of sexual offences from coming forward. These provisions were designed to protect the interests of complainants in their own private records when an accused has possession or control of such records and seeks to introduce them at a hearing in their criminal proceeding. Specifically, the provisions create procedures and criteria to assist a judge in deciding whether the records should be admitted, balancing the rights and interests of the accused, the complainant, and the public. Some of the procedural elements of these provisions also apply to s. 276 evidence applications, governing the admissibility of evidence of complainants’ prior sexual activity or history. Overall, the legislative changes created a new procedure for screening complainants’ private records in the hands of the accused, to determine whether they are admissible as evidence at trial, and a new procedure to provide complainants with additional participation rights in admissibility proceedings.

The procedure set out in the impugned provisions operates in two stages. At Stage One, the presiding judge reviews the accused’s application to determine whether the evidence sought to be adduced is capableof being admissible. For s. 276 evidence applications, if the judge determines that the proposed evidence is not s. 276 evidence, the application will terminate. If the proposed evidence is s. 276 evidence but the judge concludes that it is not capable of being admissible, the application will be denied. If the s. 276 evidence is capable of being admissible, the application proceeds to a Stage Two hearing. For applications under the record screening regime, if the judge determines that the proposed evidence is not a “record” under s. 278.1, the application will terminate. If the proposed evidence is a “record” but the judge concludes that it is not capable of being admissible, the application will be denied. If the evidence is a “record” and it is capable of being admissible, the application proceeds to a Stage Two hearing. At the Stage Two hearing, the presiding judge decides whether the proposed evidence meets the tests for admissibility. For s. 276 evidence applications, the governing conditions are set out in s. 276(2), as directed by s. 278.92(2)(a) and in accordance with the factors listed in s. 276(3). For private record applications, the test for admissibility is whether the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This determination is made in accordance with the factors listed in s. 278.92(3). Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if they so choose.

By way of pre‑trial applications, two accused, J and R, challenged the constitutionality of ss. 278.92 to 278.94, arguing that Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Charter, namely: the right to silence and the privilege against self‑incrimination under ss. 7 and 11(c); the right to a fair trial under ss. 7 and 11(d); and the right to make full answer and defence under ss. 7 and 11(d). In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appeals that ruling, and J cross‑appeals, contesting the constitutionality of the regime in its entirety. In R’s case, the complainant S, who was granted the right to be added as a party by the Court, appeals from the application judge’s ruling that impugned the constitutionality of the regime as a whole, effectively preventing her from participating in the record screening process.

Held (Côté, Brown and Rowe JJ. dissenting in part): Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications. The Crown’s appeal should be allowed, J’s cross‑appeal dismissed, S’s appeal allowed and the application judges’ rulings quashed.

Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Before determining the constitutionality of the impugned provisions, it is necessary to interpret them. First, it must be determined what qualifies as a “record” for private record applications, using s. 278.1 as the starting point. The definition of “record” creates two distinct groups: (1) records that fall within enumerated categories; and (2) records that do not fall within the enumerated categories but otherwise contain personal information for which there is a reasonable expectation of privacy. Should an accused wish to tender an enumerated record, they must proceed with a s. 278.93(1) application, regardless of the specific content of the record. Non‑enumerated records are those which contain personal information about complainants for which they have a reasonable expectation of privacy. These records contain information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well‑being. A presiding judge should consider both the content and context of the record to determine whether a record contains such information. If it does, the accused must proceed with a s. 278.93(1) application.

Second, a purposive approach to the meaning of the word “adduce” should be adopted to include references to the content of a record made in defence submissions or the examination and cross-examination of witnesses. This interpretation is not limited to circumstances where evidence is entered as an exhibit.

Third, the scope of complainant participation has not been comprehensively defined in the impugned provisions. Where the presiding judge decides to hold a Stage One hearing to determine whether the record is capable of being admissible, the complainant’s participatory rights do not apply. Both the complainant and their counsel can attend the entire Stage Two hearing and make oral and written submissions to facilitate meaningful participation. The complainant’s right to make submissions does not extend to the trial itself. Further, the complainant does not have the right to cross‑examine the accused in the Stage Two hearing, either directly or through counsel. The complainant also may not lead evidence at the Stage Two hearing.

Fourth, the timing of applications is specified in s. 278.93(4), which requires that applications be brought “seven days previously”. Properly interpreted, “previously” refers to the Stage One inquiry where the presiding judge determines whether a Stage Two hearing is necessary. The Crown and clerk of the court must have at least seven days’ notice of the application before it is reviewed by the judge at Stage One. However, s. 278.93(4) states that the judge can exercise their discretion to truncate the notice period in the “interests of justice”. While the statutory language does not specify that these applications must be conducted pre‑trial, this should be the general practice. Mid‑trial applications should not be the norm.

The appropriate framework for the Charteranalysis in the instant case is based on the Court’s prior jurisprudence, which recognized that both ss. 7 and 11(d) of the Charterare inextricably intertwined. These rights should be assessed together where they are co‑extensive and separately where a concern falls specifically under one of the rights. As s. 7 should not be used to limit the specific guarantees in ss. 8 to 14 of the Charter, the conclusion that the ss. 7 and 11(d) analysis is co‑extensive in the instant case should not be misconstrued as an internal limiting of s. 11(d) using s. 7 principles. Further, this approach should not be interpreted as a principle of broader application when accused persons raise both ss. 7 and 11(d). The appropriate methodology for assessing multiple Charterbreaches alleged by the accused may depend on the factual record, the nature of the Charter rights at play, and how they intersect; this methodology is highly context‑ and fact‑specific.

A claimant must follow two analytical steps to establish that a law breaches s. 7 of the Charter: they must demonstrate that (1) the impugned provisions result in the deprivation of life, liberty or security of the person; and that (2) the deprivation violates principles of fundamental justice. Because both accused face the possibility of imprisonment in the instant appeals, the right to liberty in the first stage of the s. 7 analysis is engaged. Accordingly, the s. 7 analysis must focus on the second analytical step — the alleged breaches of the principles of fundamental justice.

The principles of trial fairness and the accused’s right to make a full answer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s. 11(d). The key principles of s. 11(d) that apply are that (1) an individual must be proven guilty beyond a reasonable doubt; (2) the state must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with due process. Section 11(d) does not guarantee the most favourable procedures imaginable for the accused, nor is it automatically breached whenever relevant evidence is excluded. The broad principle of trial fairness is not assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community. While the emphasis on an accused’s fair trial rights under s. 7 should be primary, the right to make full answer and defence and the right to a fairtrial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large.

Any concerns regarding self-incrimination due to defence disclosure can be addressed through the concepts of full answer and defence and trial fairness rights embodied in the ss. 7 and 11(d) analysis. Since the accused is not compelled to testify, s. 11(c) of the Charteris not engaged.

The admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The record screening regime embodies the fundamental principle governing the law of evidence — i.e., relevant evidence should be admitted, and irrelevant evidence excluded, subject to the qualification that the probative value of the evidence must outweigh its potential prejudice to the conduct of a fair trial. The accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This is also one of the conditions for s. 276 evidence, which has been constitutionally upheld by the Court. Both regimes seek to protect complainants against harmful myths and stereotypes. The right to make full answer and defence will only be violated if the accused is prevented from adducing relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect. The admissibility threshold in the record screening regime does not give rise to such a violation.

Furthermore, the Stage One application process in s. 278.92 is not overbroad. Overbreadth must be understood relative to the legislative purpose. The record screening regime was intended to fill a legislative gap to ensure statutory protection of complainants’ privacy and dignity, where the accused is in possession or control of their highly private records. Parliament enacted the record screening regime with a view to protecting the dignity, equality, and privacy interests of complainants; recognizing the prevalence of sexual violence in order to promote society’s interest in encouraging victims of sexual offences to come forward and seek treatment; and promoting the truth‑seeking function of trials, including by screening out prejudicial myths and stereotypes. The procedure for the record screening regime is not overbroad relative to this legislative purpose because it does not go further than is reasonably necessary.

As well, the definition of “record” in s. 278.1 supports the constitutionality of s. 278.92 because it will only capture materials that come within the enumerated categories, or that otherwise contain information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well‑being. The screening of records that meet this definition is rationally connected to Parliament’s objective of protecting the privacy and dignity interests of complainants. This narrow definition includes only evidence that has implications for complainants’ dignity. There will be cases where it is unclear whether evidence falls into the definition. But this, alone, does not render the regime overbroad. Also, just because a record is subject to screening does not mean it will be excluded at trial. Records that meet the admissibility threshold for screening can still be adduced at trial. Further, requiring an accused to bring an application to adduce materials that might contain information of an intimate and highly personal nature is consistent with the objective of the regime, since it respects both the accused’s fair trial rights and the complainant’s privacy and equality interests.

Likewise, the Stage One application process, set out in s. 278.93, is constitutional. With respect to ss. 7 and 11(d), the record screening regime does not require compelled defence disclosure in a manner that would violate an accused’s right to a fair trial. First, there is no absolute rule against requiring the defence to disclose evidence to the Crown before the prosecution closes its case. Second, the record screening regime applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth‑seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under ss. 7 and 11(d) of the Charter.

The complainant participation provisions in s. 278.94, which apply to the s. 276 regime and to the record screening regime (at Stage Two), do not violate the accused’s fair trial rights protected by ss. 7 and 11(d) of the Charter. There is no support for the assumption that the application deprives the accused of knowing the complainant’s initial reaction to the application evidence. There is no change from the previous regime, as the accused has not lost any right to Crown disclosure. In any event, there is no evidence that a complainant’s initial emotional reaction to the application is inherently valuable, outside of myth‑based reasoning that relies on stereotypes. If any new relevant information arises during the Crown’s consultation with the complainant, then it has a duty to disclose this information to the accused. The provisions granting participatory rights to complainants have not altered the Crown’s obligations.

As well, the complainant participation provisions in s. 278.94 have no impact on prosecutorial independence. The Stage Two hearing does not violate the right to a fair trial by disrupting the general structure of a criminal trial as a bipartite proceeding between the Crown and the accused. The participation of complainants is justified because they have a direct interest in whether their records, for which they have a reasonable expectation of privacy, are adduced in open court, and their contributions are valuable exactly because they are different from the Crown’s. This limited standing on the issue of admissibility, however, does not turn complainants or their counsel into parties, much less quasi-prosecutors, usurping the role of the Crown on the ultimate issue of guilt. Complainants have no participatory rights in the trial itself; they are merely bringing their unique perspective on the impact that the admission of the evidence will have on their privacy and dignity, which is directly relevant to the issue of admissibility. The presiding judge remains the final arbiter on admissibility and is entitled to accept or reject a complainant’s submissions and weigh them against competing considerations.

Finally, complainant participation does not violate the accused’s right to cross‑examine the complainant without significant and unwarranted restraint. First, the right to cross‑examine is not unlimited, and the accused is not entitled to proceed with an unfair or irrelevant cross‑examination or ambush the complainant. The right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. The impugned provisions strike a balance that protects fundamental justice for accused persons and complainants. Second, there is no absolute principle that disclosure of defence materials inevitably impairs cross‑examination and trial fairness. Complainant participation in a Stage Two hearing does not create such a risk; and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross‑examination. Third, the accused will still be able to test a complainant’s evidence by comparing it to prior statements made to the police, which are available to the defence under the Crown’s disclosure obligations. Fourth, complainants can be cross‑examined on their access to the private record application; the accused can impugn the credibility and reliability of complainants by suggesting that they tailored their evidence to fit what they learned in the application. Finally, if there is a situation where advanced disclosure of the application to a complainant will genuinely negate the efficacy of cross‑examination, the accused may choose to bring the application during cross‑examination to avoid the risk of witness tainting. The trial judge is then responsible for determining whether it is in the interests of justice to allow such an application.

In the absence of a finding that ss. 278.92 to 278.94 of the Criminal Code breach either ss. 7 or 11(d) of the Charter, it is unnecessary to canvass s. 1 of the Charter. And there are no s. 11(c) issues at play. Sections 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record applications.

Per Brown J. (dissenting in part): The record screening regime enacted under ss. 278.92 to 278.94 of the Criminal Codelimits the accused’s rights under ss. 11(c), 11(d) and 7 of the Charter. These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. Therefore, ss. 278.92 to 278.94 should be struck down, with immediate effect, but only as those sections relate to the record screening regime. This would preserve the existing s. 276 regime restricting admissibility of other sexual activity evidence and the definition of “record” in the ss. 278.1 to 278.91 regime for production of third‑party records. The record screening regime ought to be returned to Parliament to be narrowed.

First, there is agreement with Rowe J. with respect to the proper analytical framework to be applied where both s. 7 and s. 11(d) of the Charter are raised. The jurisprudence on s. 7 and its relationship to other sections of the Charter, including s. 11, is doctrinally obscure and methodologically incoherent, being the product of 40 years of accumulated judicial ad hoc‑ery. The majority’s reasons extend this trajectory by using s. 7 not to protect the fair trial and due process guarantees under the Charter, but to erode them. Since the accused’s rights are not in competition with any other set of rights, it is not necessary to decide whether the appropriate framework would be that which requires balancing or that which requires reconciling: there is nothing to balance, or reconcile. And even if competing Charterrights were engaged, previous jurisprudence would not be determinative of the constitutionality of the record screening regime, as it is not a principled extension of the common law and related codified schemes that have already survived constitutional scrutiny (i.e., the s. 276 and ss. 278.1 to 278.91 regimes). Rather, it raises a different problem, requiring a different solution; the analysis must therefore turn on the interpretation of the specific provisions and requires the application of the existing Charterframework.

The record screening regime is overbroad. As can be concluded from the proper interpretation of the terms “record” and “adduce”, this regime renders presumptively inadmissible a remarkably broad range of records in the hands of the defence, capturing not only records that are sensitive or prejudicial, and it regulates their use in any manner. Properly interpreted, the definition of “record” is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well‑being. For the purposes of the regime, a “record” is defined in s. 278.1 as anything that “contains personal information for which there is a reasonable expectation of privacy”. Although the provision does not refer to electronic communications or personal correspondence, the legislative proceedings suggest that Parliament did intend to capture digital communications sent between the accused and complainant about the subject matter of the charge. Alongside the legislative debates emphasizing the protection of privacy and equality rights for all sexual assault complainants must also be read the Court’s jurisprudence recognizing that electronic communications often contain highly private content. The weight of the jurisprudence applying s. 278.92 has also concluded that the complainant retains a reasonable expectation of privacy in electronic communications sent to the accused. Therefore, an electronic communication is a “record” if it contains personal information giving rise to a reasonable expectation of privacy, as that term has been interpreted in the s. 8 jurisprudence, and this includes any communication concerning the subject matter of the charge, whether of an explicit sexual nature or not.

Furthermore, as the record screening regime applies both to material in the accused’s possession and the information contained in that material, it therefore regulates not only the use of the record itself but the information it contains. Accused persons must now bring an application anytime they intend to refer to the contents of a private record relating to the complainant, even if they do not seek to enter it into evidence or use it to impeach the complainant, but instead simply wish to refer to it in their own defence.

The focus in an overbreadth analysis is properly directed to the relationship between the law’s purpose and its effects. Since the record screening regime captures all private records relating to the complainant that are in the accused’s possession, which the accused intends to adduce or rely on in any manner, and which may include the accused’s own digital conversations with the complainant about the subject matter of the charge, it could deprive individuals of liberty in situations that have no connection whatsoever to the object of the law. It requires disclosure of defence evidence that would not distort the truth‑seeking process or significantly interfere with the complainant’s privacy, all before the Crown makes out a case to meet. It follows that it goes too far and interferes with some conduct that bears no connection to its objective.

In addition, properly interpreted, the record screening regime limits the accused’s rights under ss. 11(c), 11(d) and 7 of the Charter in four ways. First, the record screening regime forces accused persons to reveal, in detail, particulars of their own prior statements and cross‑examination strategy and potential impeachment material, even before the Crown has laid out a case to be answered, as an application will be brought pre‑trial in the vast majority of cases. This shifts away from foundational principles of the criminal trial process, violating the principle against self‑incrimination, the right to silence, the presumption of innocence, and the related principle that the Crown must establish a case to meet before the accused can be expected to respond. While the Court approved advance disclosure to the Crown and complainant for evidence of other sexual activity, the principles stated are limited to the application of s. 276, which is designed to exclude only irrelevant information, and relevant information that is more prejudicial to the administration of justice than it is probative. The same rationale does not apply to the record screening regime. Similarly, compelled production of confidential materials from third parties raises different sensitivity and privacy concerns compared to records in the accused’s possession. While it is true that the law imposes limited obligations on parties to provide disclosure so as to justify questioning or admission of evidence in situations that do not unconstitutionally limit the right to silence, none of these instances remotely support the conclusion that the right to silence is unaffected by the record screening regime. The Court has never concluded that tactical burdens to provide pre‑trial disclosure are automatically Charter‑compliant. In any event, confronting an accuser with all relevant evidence is quite different than making tactical choices such as challenging a search warrant. The limits to the protection from self‑incrimination and the right to silence are, on their own, fatal to the constitutionality of the regime. The violations to the self‑incrimination principle are in no way attenuated by the later admission of the highly relevant and probative evidence.

Secondly, the advance disclosure requirement and complainant’s participatory rights operate together to limit the accused’s ability to effectively cross‑examine the complainant, contrary to the presumption of innocence, the right to make full answer and defence and the right to a fair trial. The accused’s right to make full answer and defence gives meaning and operation to the presumption of innocence — the most elementary manifestation of society’s commitment to a fair trial. This extends to calling the evidence necessary to establish a defence, and challenging the evidence called by the prosecution, without significant and unwarranted constraint. Unwarranted constraints on cross‑examination may undermine the fairness of the trial, and increase the risk of convicting the innocent. Reasonable limits may be placed on the cross‑examination of a complainant in a sexual assault trial to prevent it from being used for improper purposes. But cross‑examination in respect of consent and credibility should be permitted where the probative value is not substantially outweighed by the danger of unfair prejudice that may flow from it. In sexual assault cases, cross‑examination is often the only way to expose falsehoods, memory issues, and inconsistencies in the complainant’s testimony. In many cases, advance disclosure of counsel’s dossier or strategy may improperly shape the complainant’s testimony, consciously or unconsciously, in a manner that cannot be readily exposed or mitigated at trial, thereby reducing the effectiveness of the cross‑examination. The risks go beyond the explicit fabrication of evidence, and include the subtle manipulation of testimony by a witness to address the frailties or inconsistencies disclosed in advance by the defence. In many cases, there will also not be any pre‑trial sworn statements on which the accused can impeach the complainant. While there is no right to ambush or whack a complainant with misleading or abusive cross‑examination, confronting a complainant with inconsistencies that have not previously been disclosed is a well‑established and often exceedingly effective aspect of cross‑examination used to test the complainant’s credibility. Impeachment of a Crown witness, including impeachment by surprise, is a legitimate and valuable defence tactic, which the regime eviscerates.

Thirdly, the fact that the record screening regime makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown, renders the trial unfair and undermines the regime’s purpose. In this way, the regime differs from the s. 276 and ss. 278.1 to 278.91 regimes, and limits the right to a fair trial.

Fourthly, combined with the broad scope of “record” and advance notice requirement, the effect of the heightened standard of admissibility of defence evidence set by the record screening regime limits the rights to a fair trial and to make full answer and defence. The accused must establish, in advance of the complainant’s testimony, that the records have significant probative value, meaning some relevant and probative evidence will necessarily be excluded. A judge may exclude evidence relevant to a defence allowed by law only where the prejudice substantially outweighs the probative value of the evidence. Section 278.92(2)(b) does violence to that principle by allowing admission of evidence only where it is of significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Although the significant probative value standard in the s. 276 context was upheld, the same rationale does not apply mutatis mutandis to the record screening regime. While s. 276 addresses inherent damages and disadvantages in admitting sexual history evidence, the regime captures evidence that may well not have any distorting or damaging effect on the trial.

The limits on the accused’s rights are not demonstrably justified. While the record screening regime has a pressing and substantial objective, it fails at the rational connection, minimal impairment, and final balancing stages of the s. 1 analysis. The one‑sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant’s privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. By requiring disclosure of potential defence evidence, strategy, and lines of cross‑examination before the Crown has made out a case to meet, and by depriving the accused of establishing the relevance of that evidence based on the complainant’s testimony, the regime does not minimally impair the right to silence, the presumption of innocence, or the principle against self‑incrimination. By mandating advance notice and disclosure to both the Crown and complainant, and by giving the complainant a role in the admissibility determination before trial, the regime allows the Crown’s key witnesses to reconcile inconsistencies and potentially alter their evidence in subtle ways that are difficult to test or expose in court. The deleterious effects on individual accused persons are substantial, and this is all quite independent of significant deleterious effects on the criminal justice system, including increased trial complexity and delay. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused’s rights to a lesser extent. The harmful impacts and risk of wrongful convictions outweigh any potential benefits of the regime. The Crown has not demonstrated that the law’s salutary effects outweigh its deleterious effects.

Per Rowe J. (dissenting in part): On the merits, there is agreement with Brown J. that ss. 278.92 to 278.94 of the Criminal Code are unconstitutional and of no force and effect except in so far as they apply to the existing s. 276 regime. The legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross‑examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants. As well, the screening process introduced by the legislation violates ss. 11(c) and 11(d) by requiring the accused to disclose all records relevant to their defence before the Crown has established the case to meet.

In order to give proper effect to ss. 7, 11 and 1 of the Charter, the following approach should be applied: where a specific Charter guarantee, such as s. 11, is pleaded along with the broader guarantee in s. 7, the specific guarantee should be addressed first. If a violation of the specific Charter guarantee is found, there is no reason to proceed to s. 7. If there is no violation of the specific guarantee, or the violation is found to be justified under s. 1, the courts must then look to s. 7. This approach accords with the structure of the Charter, and with the text and purposes of the “Legal Rights” in ss. 7 to 14 and s. 1.

The methodological approach adopted by the majority in these appeals inverts the proper role of s. 7 by introducing internal limits on s. 7 rights into s. 11. However, s. 7 is a broad, rights‑conferring provision. To construe it as a limit on other Charter rights is wrong in principle and, in the instant case, undermines the longstanding, fundamental right to a fair trial.

Ordinarily, a Charter right can only be limited in one of two ways: internally, through its own text, or by undertaking the balancing required in s. 1. Qualifying words used in the text of the Charter are the starting point for the interpretation of the scope of Charter rights and any internal limits. Sections 11(c) and 11(d) have few internal limits and can otherwise be limited only following a proportionality assessment under s. 1.

A limit on s. 11 based on s. 7 does not conform either to the architecture of the Charter or to the purposes of those provisions or of s. 1. There is no foundation for an analytical approach whereby ss. 11(c) and 11(d) rights can be limited by reference to internal limits in s. 7. This would involve a grave distortion of s. 7, which is a broad, rights‑conferring provision.

The improper use of s. 7 to create limits on s. 11 results from an inconsistent interpretation of s. 7 that has given rise to doctrinal difficulties. The s. 7 jurisprudence has been unclear on how to identify and define the principles of fundamental justice. An expansive approach to these principles, which includes not only procedural protections, but also substantive ones, has given rise to considerable uncertainty; it has contributed to s. 7 jurisprudence marked by indeterminacy and an ongoing lack of doctrinal clarity. These uncertainties are being introduced into s. 11.

There is also a lack of coherence in the s. 7 methodology and no clear guidance for how principles of fundamental justice are balanced with competing considerations in arriving at the scope of s. 7 rights, or whether such a balancing is appropriate. When engaging in an internal balancing under s. 7, the Court has sometimes categorized competing considerations as Charter rights, Charter values, or societal interests, but without a systematic or consistent approach to how these are to be weighed against one another, or even whether the considerations applicable to each category are different. It is not clear how Charter values and societal interests as opposed to Charter rights are defined; whether these rights, values or interests must engage s. 7 or at least amount to principles of fundamental justice in order to be part of the balancing; or, in the event of conflict between rights, interests and values, how one should decide which consideration prevails. These ambiguities mean that Charter rights can be weighed against Charter values and societal interests — unclear and amorphous concepts of uncertain legal origin and status that can be chosen from, at will, by a decision maker to arrive at a given result. The outcomes provide little certainty and little predictability, and open the door widely to conclusory decision‑making.

Internal limits on s. 7 rights are being relied on by the majority in three ways to introduce limitations into s. 11. The first approach finds that ss. 11(c) and 11(d) protect rights that illustrate principles of fundamental justice, and therefore these may be balanced against other considerations under s. 7. When s. 7 is given priority in the analysis, it subsumes ss. 11(c) and 11(d) and the latter can be limited without a s. 1 analysis. The second approach defines ss. 11(c) and 11(d) following consideration of other interests because they are inextricably intertwined with s. 7. The third approach holds that, because it is so closely related to s. 7, the definition of fairness in s. 11(d) includes considerations of the interests of the state and other parties. All these approaches conflate s. 7 with the other rights in ss. 8 to 14 of the Charterand tend to channel the entire constitutional analysis through s. 7. Such an analysis operates almost entirely outside the constitutional text, structure, and purposes of the various provisions. It defines the right to a fair trial by reference to the perspectives of the accused, the complainant, the community and the criminal justice system at large. However, the right to a fair trial under s. 11(d) is one that appertains to the accused only. The majority’s approach limits the fair trial right of the accused based on societal interests analyzed through the vehicle of the principles of fundamental justice under s. 7. Instead, the proper methodology by which to have regard to such societal considerations is under s. 1 and not by using s. 7 as a mechanism to limit rights under s. 11.

In addition, as a practical matter, balancing s. 7 internally and using the outcome to limit s. 11 leads to a reversal of the burden of proof and a dilution of Charter protections. Under s. 11, an accused alleging a violation must prove it; if proven, the onus shifts to the state to justify the violation under s. 1. By contrast, if there is a balancing of Charter rights, Charter values and societal interests under the principles of fundamental justice in s. 7, the burden is on the accused throughout. Accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under s. 11 and the purpose of s. 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society. A further potentially anomalous result under this approach is that s. 11 may first be limited by s. 7 and then, when the usual s. 1 analysis is undertaken, s. 11 rights may be further limited. Most fundamentally, limiting s. 11 through s. 7 is contrary to the purposes of both ss. 7 and 11.

Per Côté J. (dissenting in part): There is agreement with Brown J. that the record screening regime does not come close to passing constitutional muster. There is also agreement with Rowe J.’s analytical approach in respect of s. 7 of the Charter. However, there is disagreement with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. A narrow interpretation should be preferred.

A proper interpretation of “record” as defined in s. 278.1 of the Criminal Code excludes any communications — electronic or otherwise — between the accused and the complainant other than communications made in the context of a professional relationship in which there was an expectation of some degree of confidentiality. Such an interpretation better accords with the text of s. 278.1. Communications between the complainant and the accused are not specifically enumerated as records in that section. The common thread weaving through the enumerated records is the complainant’s reasonable expectation that such records will not be publicly disclosed. The defining feature is not the highly personal nature of the information. Accordingly, unenumerated records will be documents containing personal information that the complainant expects not to be disclosed. These could be either (1) records created in a professional context for which there is an expectation of some degree of confidentiality, even if the relationship is not strictly confidential, or (2) records that are intended for the complainant’s exclusive personal use and review.

In addition to being consistent with the text of s. 278.1, a narrower interpretation of “record” is more consistent with the section’s legislative evolution and legislative history. By importing a definition of “record” from the regime for the production of third party records, which did not contemplate or include communications between the accused and the complainant, Parliament signaled an intention that such communications do not constitute records for the purposes of the record screening regime. As well, the record screening regime was enacted to address a gap in the law that arose where an accused legally came into possession of a record. The mischief to be remedied was not the admission at trial of voluntary communications between the complainant and the accused. This again weighs heavily in favour of an interpretation of “record” that excludes electronic communications between an accused and a complainant.

A narrow interpretation of “record” is also more consistent with the Court’s jurisprudence and with the common law meaning of the phrase “reasonable expectation of privacy”. Expectations of privacy are contextual, and must be assessed in light of the totality of circumstances. The key contextual factor is that an individual does not have an objectively reasonable expectation of privacy in communications vis‑à‑vis the recipient of the message. Where the accused’s liberty is at stake, a complainant’s expectation of privacy in communications with the accused is objectively unreasonable. The only exception to this category‑based approach relates to messages exchanged in the context of a professional relationship in which there is an expectation of some degree of confidentiality. In such circumstances, the professional relationship and the corresponding expectation of some degree of confidentiality ground a reasonable expectation of privacy.

The majority’s approach fails fundamentally to assess whether the complainant’s expectation of privacy is objectively reasonable in the circumstances. It gives undue weight to the content of the communication, while simultaneously disregarding or minimizing other significant contextual factors. As a result, no meaningful guidance is offered on how to discern whether a message is subject to the record screening regime. As well, the majority’s conception of and approach to privacy is inconsistent with the idea that a reasonable expectation of privacy standard is normative rather than simply descriptive. The trial context is determinative.

There is quite simply no reason to depart from the common law meaning of the phrase “reasonable expectation of privacy” and the content‑neutral approach that has been developed in relation to it. There is nothing in the text of s. 278.1 that suggests doing so is necessary. A content‑neutral approach would also facilitate the operation of the record screening regime and would have the significant benefit of largely averting the need for motions for directions. The majority’s justification for jettisoning the content‑neutral approach is unpersuasive and inconsistent with the fundamental premise of the record screening regime. It is also internally inconsistent their own reasons as well as being inconsistent with the Court’s jurisprudence.

It would not be difficult to meaningfully assess or protect a complainant’s privacy interests, as the focus should be on the expectation of privacy rather than on the content of the information. Records can attract a reasonable expectation of privacy — regardless of their content — based on the medium used to convey the information. In the record screening regime, the medium — and the expectation of privacy that exists in the context of that medium — is determinative.

Adopting a narrow category‑based approach to the interpretation of “record” avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two‑tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. A category‑based approach would have significant practical benefits in terms of trial efficiency as it would not be necessary to contextually assess each message in order to determine whether it constitutes a “record”.

With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record. Sections 278.92 and 278.93 of the Criminal Code are clear. An application is required only where an accused intends to introduce a copy of the actual record into evidence. It is not required where an accused intends only to ask questions about the information contained in the record, and not to adduce the record in evidence. Interpreting “adduce” more broadly leads to an inherent incongruity, preventing one accused from using relevant information merely because this accused possesses the best evidence of the information. An accused should be permitted to ask the complainant questions about any electronic conversations between them that are relevant to an issue at trial, and barring an evidentiary rule, should also be permitted to testify about electronic conversations with the complainant.

Even with narrower interpretations of “record” and “adduce”, Brown J.’s constitutional analysis remains overwhelmingly applicable. The record screening regime continues to force accused persons to reveal their defence before the Crown has made out a case to meet, contrary to the principle against self‑incrimination, the right to silence, and the presumption of innocence. The regime continues to restrict the accused’s ability to cross‑examine Crown witnesses by giving the complainant a role in pre‑trial admissibility determinations. The regime still makes private records presumptively inadmissible when tendered by the defence, but presumptively admissible when tendered by the Crown. Finally, the regime still sets a stricter test for admitting defence evidence than is warranted or constitutionally permissible. None of these limits on the accused’s Charter rights can be justified under s. 1. The regime is not rationally connected to its objective, it is not minimally impairing, and its salutary effects do not outweigh its deleterious effects.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

I: Introduction: 0:00:28, paragraphs 1 to 3

II: The Preliminary Objections to the Court's Reference Jurisdiction: 0:02:16, paragraphs 4 to 5

II(A): The Constitutional Validity of Section 53 of the Supreme Court Act: 0:03:27, paragraphs 6 to 8

II(A)(1): May a Court of Appeal Exercise an Original Jurisdiction?: 0:05:19, paragraphs 9 to 11

II(A)(2): May a Court of Appeal Undertake Advisory Functions?: 0:06:57, paragraphs 12 to 15

II(B): The Court's Jurisdiction Under Section 53: 0:09:14, paragraphs 16 to 23

II(C): Justiciability: 0:13:21, paragraphs 24 to 31

III: Reference Questions

III(A): Question 1: 0:18:35

III(A)(1): Introduction: 0:18:46, paragraph 32

III(A)(2): Historical Context: The Significance of Confederation: 0:20:43, paragraphs 33 to 48

III(A)(3): Analysis of the Constitutional Principles: 33:13

III(A)(3)(a): Nature of the Principles: 0:33:18, paragraphs 49 to 54

III(A)(3)(b): Federalism: 0:37:38, paragraphs 55 to 60

III(A)(3)(c): Democracy: 0:42:15, paragraphs 61 to 69

III(A)(3)(d): Constitutionalism and the Rule of Law: 0:50:20, paragraphs 70 to 78

III(A)(3)(e): Protection of Minorities: 0:56:38, paragraphs 79 to 82

III(A)(4): The Operation of the Constitutional Principles in the Secession Context: 0:59:54, paragraphs 83 to 105

III(A)(5): Suggested Principle of Effectivity: 1:19:37, paragraphs 106 to 108

III(B): Question 2: 1:22:12, paragraphs 109 to 110

III(B)(1): Secession at International Law: 1:24:30, paragraph 111

III(B)(1)(a): Absence of a Specific Prohibition: 1:25:34, paragraph 112

III(B)(1)(b): The Right of a People to Self-determination: 1:26:24, paragraphs 113 to 122

III(B)(1)(b)(i): Defining "Peoples": 1:31:01, paragraphs 123 to 125

III(B)(1)(b)(ii): Scope of the Right to Self-determination: 1:32:56, paragraphs 126 to 130

III(B)(1)(b)(iii): Colonial and Oppressed Peoples: 1:37:12, paragraphs 131 to 139

III(B)(2): Recognition of a Factual/Political Reality: the "Effectivity" Principle: 1:43:57, paragraphs 140 to 146

III(C): Question 3: 1:49:37, paragraph 147

IV: Summary of Conclusions: 1:50:02: paragraphs 148 to 156

Headnote provided by the Supreme Court of Canada:

Pursuant to s. 53 of the Supreme Court Act, the Governor in Council referred the following questions to this Court:

1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self‑determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

Issues regarding the Court's reference jurisdiction were raised by the amicus curiae. He argued that s. 53 of the Supreme Court Act was unconstitutional; that, even if the Court's reference jurisdiction was constitutionally valid, the questions submitted were outside the scope of s. 53; and, finally, that these questions were not justiciable.

Held: Section 53 of the Supreme Court Act is constitutional and the Court should answer the reference questions.

(1) Supreme Court's Reference Jurisdiction

Section 101 of the Constitution Act, 1867 gives Parliament the authority to grant this Court the reference jurisdiction provided for in s. 53 of the Supreme Court Act. The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. While, in most instances, this Court acts as the exclusive ultimate appellate court in the country, an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction. Even if there were any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal". A "general court of appeal" may also properly undertake other legal functions, such as the rendering of advisory opinions. There is no constitutional bar to this Court's receipt of jurisdiction to undertake an advisory role.

The reference questions are within the scope of s. 53 of the Supreme Court Act. Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1)(a). Both Questions 1 and 2 fall within s. 53(1)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter" and thus come within s. 53(2). In answering Question 2, the Court is not exceeding its jurisdiction by purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law. More importantly, Question 2 does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the legislature or government of Quebec, institutions that exist as part of the Canadian legal order. International law must be addressed since it has been invoked as a consideration in the context of this Reference.

The reference questions are justiciable and should be answered. They do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions, as interpreted by the Court, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. Since the reference questions may clearly be interpreted as directed to legal issues, the Court is in a position to answer them. The Court cannot exercise its discretion to refuse to answer the questions on a pragmatic basis. The questions raise issues of fundamental public importance and they are not too imprecise or ambiguous to permit a proper legal answer. Nor has the Court been provided with insufficient information regarding the present context in which the questions arise. Finally, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision.

(2) Question 1

The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession.

The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in support of the existence of such a right were primarily based on the principle of democracy. Democracy, however, means more than simple majority rule. Constitutional jurisprudence shows that democracy exists in the larger context of other constitutional values. Since Confederation, the people of the provinces and territories have created close ties of interdependence (economic, social, political and cultural) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes order and stability, and accordingly secession of a province "under the Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework.

Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.

Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.

The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.

The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution" and not to usurp the prerogatives of the political forces that operate within that framework. The obligations identified by the Court are binding obligations under the Constitution. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

(3) Question 2

The Court was also required to consider whether a right to unilateral secession exists under international law. Some supporting an affirmative answer did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of people at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.

(4) Question 3

In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

I: Overview: 0:00:27, paragraphs 1 to 5

II: Facts

II(A): Council of Canadians with Disabilities: 0:02:59, paragraphs 6 to 7

II(B): Underlying Action: 0:03:40, paragraphs 8 to 9

II(C): Withdrawal of the Individual Plaintiffs and Amended Notice of Civil Claim: 0:04:57, paragraph 10

II(D): Notice of Application to Dismiss Filed by Attorney General of British Columbia: 0:05:37, paragraphs 11 to 13

II(E): Subsequent Class Action and Personal Injury Claim: 0:07:09, paragraphs 14 to 15

III: Judgments of the Courts Below

III(A): Supreme Court of British Columbia, 2018 BCSC 1753 (Hinkson C.J.): 0:07:57, paragraph 16

III(A)(1): Serious Justiciable Issue: 0:08:45, paragraph 17

III(A)(2): Genuine Interest: 0:09:10, paragraph 18

III(A)(3): Reasonable and Effective Means: 0:09:29, paragraphs 19 to 20

III(B): Court of Appeal for British Columbia, 2020 BCCA 241, 41 B.C.L.R. (6th) 47 (Frankel, Dickson and DeWitt-Van Oosten JJ.A.): 0:11:08, paragraph 21

III(B)(1): Access to Justice and the Principle of Legality: 0:11:26, paragraphs 22 to 23

III(B)(2): Serious Justiciable Issue: 0:12:19, paragraph 24

III(B)(3): Reasonable and Effective Means: 0:13:04, paragraph 25

III(B)(4): Prospect of Duplicative Proceeding: 0:13:37, paragraph 26

IV: Issues: 0:14:05, paragraph 27

V: Analysis

V(A): Legality and Access to Justice in the Law of Public Interest Standing: 0:14:49, paragraphs 28 to 32

V(A)(1): Defining the Legality Principle and Access to Justice: 0:16:52, paragraphs 33 to 36

V(A)(2): Role of Legality and Access to Justice in Developing Public Interest Standing: 0:18:16, paragraphs 37 to 40

V(A)(3): Current Framework Addresses Legality and Access to Justice: 0:20:38, paragraphs 41 to 43

V(A)(3)(a): Traditional Concerns of Standing Law: 0:21:37, paragraphs 44 to 47

V(A)(3)(b): Serious Justiciable Issue: 0:23:27, paragraphs 48 to 50

V(A)(3)(c): Genuine Interest: 0:24:51, paragraph 51

V(A)(3)(d): Reasonable and Effective Means: 0:25:19, paragraphs 52 to 55

V(A)(4): Conclusion on Access to Justice and Legality in Public Interest Standing Law: 0:27:47, paragraphs 56 to 59

V(B): Sufficient Factual Setting For Trial: 0:29:42, paragraphs 60 to 62

V(B)(1): Individual Co-plaintiff Not Required: 0:31:03, paragraphs 63 to 67

V(B)(2): Satisfying a Court on this Factor Will Be Context-Specific: 0:33:12, paragraphs 68 to 72

V(B)(3): Ability to Revisit Standing: 0:38:13, paragraphs 73 to 77

V(C): Application to the Facts: 0:41:42, paragraphs 78 to 80

V(C)(1): Errors in the Courts Below

V(C)(1)(a): Chambers Judge: 0:42:42, paragraph 81

V(C)(1)(a)(i): Errors With Respect to the Serious Justiciable Issue Factor: 0:42:51, paragraphs 82 to 84

V(C)(1)(a)(ii): Errors With Respect to the Genuine Interest Factor: 0:43:50, paragraph 85

V(C)(1)(a)(iii): Errors With Respect to the Reasonable and Effective Means Factor: 0:44:18, paragraphs 86 to 94

V(C)(1)(b): Court of Appeal: 0:48:11, paragraphs 95 to 96

V(C)(2): Downtown Eastside Framework Favours Granting Standing in the Instant Case: 0:49:03, paragraph 97

V(C)(2)(a): Serious Justiciable Issue: 0:49:18, paragraphs 98 to 100

V(C)(2)(b): Genuine Interest: 0:50:51, paragraphs 101 to 103

V(C)(2)(c): Reasonable and Effective Means: 0:52:40, paragraph 104

V(C)(2)(c)(i): Plaintiff’s Capacity to Bring the Claim Forward: 0:53:09, paragraphs 105 to 109

V(C)(2)(c)(ii): Whether the Case is of Public Interest: 0:55:33, paragraph 110

V(C)(2)(c)(iii): Realistic Alternative Means: 0:56:00, paragraphs 111 to 116

V(C)(2)(c)(iv): Potential Impact of the Proceeding on the Rights of Others: 0:58:22, paragraph 117

V(C)(3): Cumulative Weighing: 0:58:44, paragraph 118

V(D): Special Costs: 0:59:14, paragraphs 119 to 123

VI: Disposition: 1:01:19, paragraph 124

Headnote provided by the Supreme Court of Canada:

A not‑for‑profit organization working for the rights of people living with disabilities in Canada, together with two individual plaintiffs, filed a claim challenging the constitutionality of certain provisions of British Columbia’s mental health legislation. The claim asserts that the impugned provisions violate ss. 7 and 15(1) of the CanadianCharter of Rights and Freedomsby permitting physicians to administer psychiatric treatment to involuntary patients with mental disabilities without their consent and without the consent of a substitute decision‑maker. The two individual plaintiffs, who were involuntary patients affected by the impugned provisions, eventually withdrew from the litigation, leaving the organization as the sole remaining plaintiff. The organization filed an amended claim shortly thereafter seeking, among other things, public interest standing to continue the action.

The Attorney General applied to have the action dismissed on the basis that the organization lacked standing. The chambers judge allowed the application and dismissed the claim. In his view, the organization failed to satisfy the test for public interest standing set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. The organization appealed. The Court of Appeal determined that the principles of legality and of access to justice merit particular weight in the Downtown Eastside framework, and held that the chambers judge erred in finding that the claim lacked a particular factual context of an individual’s case or an individual plaintiff. The Court of Appeal allowed the appeal, set aside the order dismissing the action, and remitted the matter to the court of first instance for fresh consideration. The Attorney General appeals to the Court and the organization seeks leave to cross-appeal to be granted public interest standing.

Held: The appeal should be dismissed, leave to cross appeal granted, the cross‑appeal allowed and the organization granted public interest standing.

The principles of legality and of access to justice do not merit particular weight in the Downtown Eastside analysis. The flexible, discretionary approach to public interest standing must be guided by allthe underlying purposes of standing, and no one purpose, principle or factor takes precedence in the analysis. Furthermore, a directly affected co‑plaintiff is not required for a public interest litigant to be granted standing, as long as the latter can establish a concrete and well‑developed factual setting. In the circumstances of the instant case, the interests of justice mandate that the question of standing be ruled upon by the Court; remitting the matter for reconsideration would only cause further delay. Weighing allof the Downtown Eastside factors cumulatively, flexibly and purposively, public interest standing should be granted to the organization.

The decision to grant or deny public interest standing is discretionary. The Downtown Eastside framework mandates that in exercising its discretion, a court must assess and weigh three factors: (i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a genuine interest in the matter; and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court. Under this framework, courts flexibly and purposively weigh the factors in light of the particular circumstances and in a liberal and generous manner. Each factor is to be weighed in light of the underlying purposes of limiting standing, which consist of efficiently allocating scarce judicial resources and screening out busybody litigants, ensuring that courts have the benefit of the contending points of view of those most directly affected by the issues, and ensuring that courts play their proper role within our democratic system of government. Courts must also consider the purposes that justify grantingstanding in their analyses, that is, giving effect to the principle of legality and ensuring access to justice. The goal in every case is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it.

Legality and access to justice have played a pivotal role in the development of public interest standing. The legality principle encompasses the ideas that state action must conform to the law and that there must be practical and effective ways to challenge the legality of state action. Legality derives from the rule of law — if people cannot challenge government actions in court, individuals cannot hold the state to account and the government will be or be seen to be above the law. Access to justice is also fundamental to the rule of law. There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Access to justice is symbiotically linked to public interest standing: it provides an avenue to litigate the legality of government action in spite of social, economic or psychological barriers which may preclude individuals from pursuing their legal rights.

Legality and access to justice are primarily considered in relation to the third Downtown Eastside factor, which asks whether a proposed suit is a reasonable and effective means of bringing an issue before the court. To answer the question, courts may consider the plaintiff’s capacity to bring the claim forward, whether the case is of public interest, whether there are alternative means to bring the claim forward, and the potential impact of the proceedings on others. Because legality and access to justice feature most prominently in relation to the third factor, attaching particular weight to them would effectively transform this factor into a determinative one. Though courts are encouraged to take access to justice and legality into account, they should not turn these considerations into hard and fast requirements or freestanding, independently operating tests.

The third factor also requires courts to consider the plaintiff’s capacity to bring forward the claim. To evaluate this capacity, courts should examine the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well‑developed factual setting. Though courts cannot decide constitutional issues in a factual vacuum, public interest litigation may proceed without a directly affected plaintiff. A statute’s very existence, for instance, or the manner in which it was enacted, can be challenged on the basis of legislative facts alone. A concrete and well‑developed factual setting can also be established by calling affected, or otherwise knowledgeable, non‑plaintiff witnesses. A strict requirement for a directly affected plaintiff would pose obstacles to access to justice and would undermine the principle of legality. It would also raise procedural hurdles that would deplete judicial resources. The participation of directly affected litigants is accordingly not a separate legal and evidentiary hurdle in the discretionary balancing.

What will suffice to show that a sufficiently concrete and well‑developed factual setting will be forthcoming at trial depends on the circumstances. What may satisfy the court at an early stage of the litigation may not suffice at a later stage. Likewise, the significance of a lack of evidence will vary with the nature of the claim and the pleadings. Some cases may not be heavily dependent on individual facts, but where a case is so dependent, an evidentiary basis will weigh more heavily in the balance. In assessing whether a sufficiently concrete and well‑developed factual setting will be produced at trial, a court may consider the stage of the proceedings, the pleadings, the nature of the public interest litigant, the undertakings given, and the actual evidence tendered. If standing is challenged at a preliminary stage, the plaintiff should not be required to provide trial evidence; that would be procedurally unfair, as it would permit the defendant to obtain evidence before discovery. However, a mere undertaking or intention to adduce evidence will generally not be enough to persuade a court that an evidentiary basis will be forthcoming.

Courts retain the ability to reconsider standing, even where it was initially granted at a preliminary stage. The ability to revisit standing acts as a fail‑safe to ensure that the plaintiff does not rest on its laurels when it has undertaken to produce a sufficient evidentiary record at trial. A defendant wishing for standing to be revisited may apply to do so if a material change has occurred that raises a serious doubt about the forthcoming nature of a sufficiently concrete and well‑developed factual setting, and where alternative litigation management strategies are inadequate to address the deficiency. A material change of this scope is most likely to occur when the parties exchange pleadings or complete the discovery stage. Material changes occurring outside of these stages will be rare. With the importance of the factual setting increasing at each step of the litigation process, the lack of a factual setting will carry more weight at the close of the discovery stage than after the exchange of pleadings. Like the initial decision on standing, a decision to revisit standing turns on the particular circumstances of the case.

Applying the Downtown Eastside framework to the facts in the instant case, the organization raises a serious issue: the constitutionality of laws that implicate the Charterrights of people with mental disabilities. Though the organization’s case is still at the pleadings stage, the issue is justiciable. Material facts are pleaded which, if proven, could support a constitutional claim. The organization has a genuine interest in the issues, and in the challenges faced by people with mental disabilities. The claim is also a reasonable and effective means of bringing the matter before the courts. The case does not turn on individual facts, and it can be inferred that a sufficiently concrete and well‑developed factual setting will be forthcoming. The organization’s claim undoubtedly raises issues of public importance that transcend its immediate interests. Granting public interest standing in this case will promote access to justice for a disadvantaged group who has historically faced serious barriers to litigating before the courts.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit dictarecordings.substack.com

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Listen on 1.25x, 1.5x, 1.75x, or 2x playback speeds for faster “reading”.

The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

Timestamps:

Majority Reasons: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.

I: Introduction and Background: 0:00:30, paragraphs 1 to 7

II: Analysis

II(A): Rescission: 0:04:36, paragraphs 8 to 23

II(B): Pitt v. Holt: 0:15:33, paragraphs 24 to 27

III: Conclusion: 0:18:15, paragraph 28

Dissenting Reasons: Côté J.

I: Overview: 0:18:33, paragraphs 29 to 30

II: Analysis: 0:19:16, paragraph 31

II(A): In Canadian Tax Law, Fairmont and Jean Coutu Do Not Preclude Rescission for the Purpose of Unwinding Transactions That Have Been Entered Into Freely and Voluntarily: 0:19:46, paragraphs 33 to 43

II(B): Rescission for Mistake in the Case of a Voluntary Disposition of Property: 0:27:32, paragraphs 44 to 45

II(B)(1): Test for Rescission for Mistake in the Case of a Voluntary Disposition of Property: 0:28:35, paragraphs 46 to 57

II(B)(2): Alternative Remedies: 0:35:03, paragraphs 58 to 60

II(C): Further Remarks: 0:36:36, paragraph 61

II(C)(1): Standard of Review: 0:36:45, paragraph 62

II(C)(2): Sommerer v. The Queen: 0:37:25, paragraphs 63 to 65

II(C)(3): Re Pallen Trust: 0:40:23, paragraphs 67 to 69

III: Application: 0:41:37, paragraph 70

III(A): The Respondents Made a Mistake, Not a Misprediction: 0:41:51, paragraphs 71 to 73

III(B): The Respondents Meet the Pitt v. Holt Test for Rescission: 0:43:29, paragraphs 74 to 80

III(B)(1): Neither Policy Reasons Nor Assumption of Risk Bars Rescission in This Case

III(B)(1)(a): The Respondents’ Plan Was Not an Abusive Tax Avoidance Scheme: 0:48:14, paragraphs 81 to 86

III(B)(1)(b) Assumption of Risks: 52:09, paragraphs 87 to 93

III(B)(2): Alternative Remedies: 57:21, paragraphs 94 to 99

IV: Disposition: 1:00:22, paragraph 100

Headnote provided by the Supreme Court of Canada:

Two companies implemented a plan to protect corporate assets from creditors without incurring income tax liability. The plan was based in part on interpretations published by the Canada Revenue Agency (“CRA”) of the attribution rules in s. 75(2) and the inter‑corporate dividend deduction in s. 112(1) of the Income Tax Act. It involved the creation of family trusts, to which dividends were paid. After the plans were implemented, the Tax Court of Canada, in another matter, interpreted s. 75(2) differently than was commonly accepted by tax professionals and CRA. CRA reassessed the trusts’ returns and imposed unanticipated tax liability. The trusts petitioned for the equitable remedy of rescission of the transactions leading to and including the payment of dividends. The chambers judge considered himself bound to follow the Court of Appeal for British Columbia’s decision in Re Pallen Trust, 2015 BCCA 222, 385 D.L.R. (4th) 499, which had applied the test for equitable rescission stated in Pitt v. Holt, [2013] UKSC 26, [2013] 2 A.C. 108, to similar transactions, and he allowed the petitions. The Court of Appeal dismissed the Attorney General’s appeals.

Held (Côté J. dissenting): The appeal should be allowed, the judgments of the Court of Appeal and of the chambers judge set aside and the petitions dismissed.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: Taxpayers should be taxed based on what they actually agreed to do and did, and not on what they could have done or later wished they had done. A determination that equity can relieve a tax mistake is barred by a limiting principle of equity and by principles of tax law stated in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720, and Jean Coutu Group (PJC) Inc. v. Canada (Attorney General), 2016 SCC 55, [2016] 2 S.C.R. 670. Accordingly, the trusts are barred from obtaining rescission of the transactions.

A court of equity may grant relief where it would be unconscionable or unfair to allow the common law to operate in favour of the party seeking enforcement of the transaction. However, it is a limiting principle and a fundamental premise of equity that it developed to alleviate results under the common law that call for relief as a matter of conscience and greater fairness. Transactions that do not call for relief as a matter of conscience or fairness are properly outside equity’s domain. There is nothing unconscionable or unfair in the ordinary operation of tax statutes to transactions freely agreed upon. If there is to be a remedy, it lies with Parliament, not a court of equity.

Furthermore, the principles of tax law and the prohibition against retroactive tax planning stated in Fairmont Hotels and Jean Coutu preclude any equitable remedy. Unless a statute says otherwise, taxpayers are to be taxed in accordance with the applicable tax statute’s ordinary operation. Taxpayers may structure their affairs so as to reduce their tax liability but may also be taken as having structured their affairs in such a way that increased their tax liability. Tax consequences do not flow from parties’ motivations or objectives. Rather, they flow from their freely chosen legal relationships, as established by their transactions. A taxpayer should neither be denied nor judicially accorded a benefit based solely on what they would have done had they known better. The proper inquiry is into what the taxpayer agreed to do and not into whether there is a windfall for the public treasury or a taxpayer. A court may not modify an instrument merely because a party discovered that its operation generates an adverse and unplanned tax liability. These principles are of general application and are not confined to cases where rectification is sought. There is no room for distinguishing Fairmont Hotels or Jean Coutu based upon the particular remedy sought. A taxpayer is barred from resorting to equity in order to undo or alter or in any way modify a concluded transaction or its documentation to avoid a tax liability arising from the ordinary operation of a tax statute.

The principles stated in Fairmont Hotels and Jean Coutu are irreconcilable with the conclusion in Pitt v. Holt that equity can relieve a tax mistake. This conclusion contradicts these principles by maintaining that tax consequences are relevant to deciding whether a party to a voluntary disposition can satisfy the test for rescission. The lower courts therefore erred in relying upon Pitt v. Holt. Further, the constraint imposed by Parliament upon the Minister to assess a taxpayer in accordance with the facts and the law required CRA to reassess the trusts in light of the Tax Court’s decision. The Minister was bound to apply Parliament’s direction in the Income Tax Act, as interpreted by a court of law, unless and until that interpretation is judged to be incorrect by a higher court. No unfairness lies in holding the trusts to the consequent tax liabilities of the ordinary operation of the Income TaxAct respecting transactions freely undertaken.

Per Côté J. (dissenting): The appeal should be dismissed. Rescission is, in strictly limited circumstances, an available remedy that can be used to unwind transactions that were undertaken on the basis of a mistaken assumption, even if permitting it would effectively relieve the taxpayer from payment of unexpected taxes. There is disagreement with the majority that Fairmont Hotels and Jean Coutu are dispositive of the case at bar.Although those cases affirmed certain principles of tax law, such as the principle that taxpayers should be taxed based on what they did, not what they wish they had done, and the principle that retroactive tax planning is impermissible, they are not determinative of the availability of rescission in the tax context. Neither Fairmont Hotels nor Jean Coutu generally precludes the availability of equitable remedies in a tax context. Both clarified the test for rectification. Fairmont Hotels and Jean Coutu stand for the following propositions: if a taxpayer does not meet the test for an equitable remedy, then a court has no discretion to grant that remedy, even if the taxpayer may have to pay taxes unexpectedly; if, however, a taxpayer meets the test for an equitable remedy, then the court may grant it, even if doing so would effectively relieve the taxpayer from payment of the unexpected taxes; and a common intention to limit or avoid tax liability is insufficiently precise to evince an existing prior agreement with definite and ascertainable terms.

Rescission and rectification are different remedies with different objectives and, depending on the nature of the case, one may justify a relief where the other cannot. Rectification requires a valid antecedent decision that was incorrectly transcribed on paper and it ensures that the written instrument accurately reflects the parties’ agreement. Rescission requires a transaction that was entered into based on a mistaken assumption about the facts or the law. It enables a court to retroactively cancel the transaction, thereby restoring the parties to their original position.

Rescission on the ground of mistake is available in a tax context, but should be granted only in rare circumstances. The test developed in Pitt v. Holt, the leading case on equitable rescission of unilateral transactions for mistake, is compatible with Canadian law and should be endorsed. A court may rescind a voluntary disposition when there is a clear causative mistake of sufficient gravity that demands the intervention of equity. Only a mistake can warrant rescission, as opposed to mere ignorance or misprediction. The test for rescission is fact‑specific and objectively assessed. Still, some types of mistake should not attract relief, for example when the taxpayer accepted the risk that a scheme might be ineffective, or when it would be against public policy to grant relief. Equity will not intervene to relieve a taxpayer from the consequences of a risk that was knowingly or recklessly accepted. Additionally, the fact that a transaction would have constituted abusive tax avoidance but for the mistake might preclude rescission because when a tax plan is aggressive, the taxpayer accepts the risk that it may not operate as intended. However, the purported morality of a plan remains irrelevant and what constitutes an aggressive tax plan akin to abusive tax avoidance should be strictly interpreted. Taxpayers should not engage in bold tax planning on the assumption that it will be possible to rescind their transactions should that planning fail.

Rescission is a discretionary remedy. Appellate intervention is only warranted if a decision to grant rescission is manifestly unjust. There is no basis to intervene in the instant case. The taxpayers’ erroneous belief about s. 75(2) was a mistake of law, not a misprediction in relation to a change in the law. Rescission relieves against mistakes concerning the situation that existed at the time of the transaction. Injustice stemmed from the CRA’s change of position on the interpretation of s. 75(2) after the Tax Court rendered its decision, but while it was still arguing in the Federal Court of Appeal that the Tax Court had erred in law. CRA’s discretionary decision to reassess the trusts in these circumstances takes this case into the zone of unfairness that allows equity to intervene, and neither policy reasons nor assumption of risk bars rescission in this case.

The taxpayers’ plan did not constitute abusive tax avoidance. The primary goal of the plan was not to avoid payment of any tax. The purpose of the plan was to shield assets from creditors and to do so in a manner that did not attract tax liability, with both aspects having equal importance. The plan was also not aggressive at the time it was undertaken, because CRA was unlikely to have contested the taxpayers’ position prior to the Tax Court’s decision. Deference is also owed to the chambers judge’s conclusion that the trusts never assumed the risk that CRA would reverse its interpretation of the attribution rules. The only risk they assumed was that the general anti-avoidance rule might apply.

Because rescission is a remedy of last resort, it can only be granted if no alternative remedies are available. It is not sufficient for an alternative remedy to merely exist, the alternative remedy must be practical and adequate. No alternative remedies preclude rescission in this case. Applying to the Minister for a remission of tax is an extraordinary remedy granted in rare circumstances and it is highly unlikely that the Minister would recommend it in the instant case. A claim by the trusts against their tax advisers would also not be an adequate remedy because the tax advice was correct at the time it was given and so it is unlikely that a negligence claim would have any chance of success.

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Timestamps:

Majority Reasons: Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.

I: Introduction: 0:00:31, paragraphs 1 to 5

II: Background: 0:03:30, paragraphs 6 to 12

III: Issues: 0:07:22, paragraph 13

IV: Analysis

IV(1): Principles of Charter Interpretation in the Context of Section 2(b): 0:07:49, paragraphs 14 to 21

IV(2): The Baier Framework: 0:13:55, paragraphs 22 to 28

IV(3): Application

IV(3)(a): Nature of the Claim: 0:18:11, paragraphs 29 to 35

IV(3)(b): Application of Baier: 0:23:17, paragraphs 36 to 43

IV(3)(c): Effective Representation: 0:28:17, paragraphs 44 to 47

IV(B): Democracy: 0:30:25, paragraph 48

IV(B)(1): Interpretive and Gap-Filling Roles of Unwritten Constitutional Principles: 0:31:23, paragraphs 49 to 63

IV(B)(1)(a): The Provincial Court Judges Reference: 0:42:23, paragraphs 64 to 66

IV(B)(1)(b): The Secession Reference: 0:45:42, paragraphs 67 to 69

IV(B)(1)(c): Babcock and Imperial Tobacco: 0:48:18, paragraphs 70 to 73

IV(B)(1)(d): Trial Lawyers Association of British Columbia: 0:52:19, paragraphs 74 to 75

IV(B)(2): Relevance of the Democratic Principle to Municipal Elections: 0:54:40, paragraphs 76 to 78

IV(B)(2)(a): Section 92(8) of the Constitution Act, 1867: 0:55:55, paragraphs 79 to 80

IV(B)(2)(b): Section 3 of the Charter: 0:57:00, paragraphs 81 to 82

IV(B)(3): Conclusion on the Democratic Principle: 0:59:19, paragraphs 83 to 84

V: Conclusion: 1:00:47, paragraph 85

Dissenting Reasons: Abella, Karakatsanis, Martin and Kasirer JJ.

Introduction: 1:00:52, paragraphs 86 to 90

Background: 1:02:40, paragraphs 91 to 111

Analysis: 1:11:22, paragraphs 112 to 186

Headnote provided by the Supreme Court of Canada:

On May 1, 2018, the City of Toronto municipal election campaign commenced and nominations opened in preparation for an election day on October 22, 2018. On July 27, 2018, the closing day for nominations, Ontario announced its intention to introduce legislation reducing the size of Toronto City Council. On August 14, 2018, the Better Local Government Act, 2018, came into force, reducing the number of wards from 47 to 25.

The City and two groups of private individuals challenged the constitutionality of the Act and applied for orders restoring the 47‑ward structure. The application judge found that the Act limited the municipal candidates’ right to freedom of expression under s. 2(b) of the Charter and municipal voters’ s. 2(b) right to effective representation. He held that these limits could not be justified under s. 1 of the Charter and set aside the impugned provisions of the Act. Ontario appealed and moved to stay the judgment pending appeal. The Court of Appeal granted the stay and, on October 22, 2018, the municipal election proceeded on the basis of the 25‑ward structure created by the Act. The Court of Appeal later allowed the appeal, finding no limit on freedom of expression. The majority held that the City had advanced a positive rights claim, which was not properly grounded in s. 2(b) of the Charter, and concluded that the application judge had erred in finding that the Act substantially interfered with the candidates’ freedom of expression and in finding that the right to effective representation applies to municipal elections and bears any influence over the s. 2(b) analysis. The majority also held that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter, nor do they limit provincial legislative authority over municipal institutions.

Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Ontario acted constitutionally. The Act imposed no limit on freedom of expression. Further, unwritten constitutional principles cannot be used as bases for invalidating legislation, nor can the unwritten constitutional principle of democracy be used to narrow provincial authority under s. 92(8) of the Constitution Act, 1867, or to read municipalities into s. 3 of the Charter.

A purposive interpretation of Charter rights must begin with, and be rooted in, the text and not overshoot the purpose of the right but place it in its appropriate linguistic, philosophic and historical contexts. Section 2(b) of the Charter, which provides that everyone has the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication, has been interpreted as generally imposing a negative obligation rather than a positive obligation of protection or assistance. A claim is properly characterized as negative where the claimant seeks freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage. Such claims of right under s. 2(b) are considered under the framework established in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.

However, as explained in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, s. 2(b) may, in certain circumstances, impose positive obligations on the government to facilitate expression. Many constitutional rights have both positive and negative dimensions and this is so for s. 2(b). Central to whether s. 2(b) has been limited is, therefore, the appropriate characterization of the claim as between a negative and positive claim of right.

In the context of positive claims under s. 2(b), where a claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutory or regulatory platform for expression, the applicable framework is that of Baier. As held in Baier, to succeed, a positive claim must satisfy the following three factors first set forth in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016: (1) the claim should be grounded in freedom of expression, rather than in access to a particular statutory regime; (2) the claimant must demonstrate that lack of access to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom of expression; and (3) the government must be responsible for the inability to exercise the fundamental freedom. Thesefactors set an elevated threshold for positive claims and can usefully be distilled to a single core question: is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? This single question, a salutary clarification of the Baier test, emphasizes the elevated threshold in the second Dunmore factor while encompassing the considerations of the first and third factors. Substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is effectively precluded. While meaningful expression need not be rendered absolutely impossible, effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases.

In the present case, the City has not established a limit on s. 2(b). The City’s claim is a claim for access to a particular statutory platform, and is thus, in substance, a positive claim. The Baier framework therefore applies, and the City had to show that the Act radically frustrated the expression of election participants such that meaningful expression was effectively precluded. The candidates and their supporters had 69 days to re‑orient their messages and freely express themselves according to the new ward structure. The Act imposed no restrictions on the content or meaning of the messages that participants could convey. Many of the challengers who continued to campaign ultimately had successful campaigns, raising significant amounts of money and receiving significant numbers of votes. This would not have been possible had their s. 2(b) rights been so radically frustrated so as to effectively preclude meaningful expression. Some of the candidates’ prior expression may have lost its relevance, but something more than diminished effectiveness is required under the Baier framework. In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression may rise to the level of a substantial interference with freedom of expression. Section 2(b) is not a guarantee of the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign.

Furthermore, the unwritten constitutional principle of democracy cannot be used as a device for invalidating otherwise valid provincial legislation such as the impugned provisions of the Act. Unwritten principles are part of the law of the Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms. Their legal force lies in their representation of general principles within which the constitutional order operates and, therefore, by which the Constitution’s written terms — its provisions — are to be given effect. In practical terms, unwritten constitutional principles may assist courts in only two distinct but related ways.

First, they may be used in the interpretation of constitutional provisions. Where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids. When applied to Charterrights, unwritten principles assist with purposive interpretation, informing the character and the larger objects of the Charteritself, the language chosen to articulate the specific right or freedom, and the historical origins of the concepts enshrined. Where unwritten constitutional principles are used as interpretive aids, their substantive legal force must arise by necessary implication from the Constitution’s text. Secondly, and relatedly, unwritten principles can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture. Structural doctrines can fill gaps and address important questions on which the text of the Constitution is silent.

Neither of these functions support the application of unwritten constitutional principles as an independent basis for invalidating legislation. On the contrary, unwritten constitutional principles, such as democracy, a principle by which the Constitution is to be understood and interpreted, strongly favour upholding the validity of legislation that conforms to the text of the Constitution. Subject to the Charter, a province, under s. 92(8) of the Constitution Act, 1867, has absolute and unfettered legal power to legislate with respect to municipalities. This plenary jurisdiction is unrestricted by any constitutional principle.

As for s. 3 of the Charter, it guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right to effective representation. The text of s. 3 makes clear, however, that it does not extend to municipal elections. Effective representation is not a principle of s. 2(b) of the Charter, nor can the concept be imported wholesale into s. 2(b). Section 3 and its requirement of effective representation also cannot be made relevant to the current case by using the democratic principle. Section 3 democratic rights were not extended to candidates or electors to municipal councils. The absence of municipalities in the constitutional text is not a gap to be addressed judicially; rather, it is a deliberate omission. The text of the Constitution makes clear that municipal institutions lack constitutional status, leaving no open question of constitutional interpretation to be addressed and, accordingly, no role to be played by the unwritten principles.

Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and the application judge’s declaration that the timing of the Act unjustifiably infringed s. 2(b) of the Charter restored. Changing the municipal wards in the middle of an ongoing municipal election was unconstitutional.

When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. That is at the core of political expression, which in turn is at the core of what is protected by s. 2(b) of the Charter. The right to disseminate and receive information connected with elections has long been recognized as integral to the democratic principles underlying freedom of expression, and as a result, has attracted robust protection.

A stable election period is crucial to electoral fairness and meaningful political discourse. As such, state interference with individual and collective political expression in the context of an election strikes at the heart of the democratic values that freedom of expression seeks to protect, including participation in social and political decision‑making.

A two‑part test for adjudicating freedom of expression claims was established in Irwin Toy. The first asks whether the activity is within the sphere of conduct protected by freedom of expression. If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. The second asks whether the government action, in purpose or effect, interfered with freedom of expression.

The legal framework set out in Baier, which was designed to address under inclusive statutory regimes, only applies to claims placing an obligation on government to provide individuals with a particular platform for expression. Claims of government interference with expressive rights that attach to an electoral process are the kind of claims governed by the Irwin Toy framework.

The distinction between positive and negative rights is an unhelpful lens for adjudicating Charterclaims. All rights have positive dimensions since they exist within, and are enforced by, a positive state apparatus. They also have negative dimensions because they sometimes require the state not to intervene. A unified purposive approach has been adopted to rights claims, whether the claim is about freedom from government interference in order to exercise a right, or the right to governmental action in order to get access to it. The threshold does not vary with the nature of the claim to a right. Each right has its own definitional scope and is subject to the proportionality analysis under s. 1 of the Charter. There is therefore no reason to superimpose onto the constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes.

In the present case, the s. 2(b) claim is about government interference with the expressive rights that attach to the electoral process and it is precisely the kind of claim that is governed by the Irwin Toy framework. Applying that framework, it is clear that the timing of the legislation, by interfering with political discourse in the middle of an election, violated s. 2(b) of the Charter. By radically redrawing electoral boundaries during an active election that was almost two‑thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse. The Act eradicated nearly half of the active election campaigns, and required candidates to file a change of ward notification form to continue in the race. The redrawing of ward boundaries meant that candidates needed to reach new voters with new priorities. Voters who had received campaign information, learned about candidates’ mandates and engaged with them based on the 47‑ward structure had their democratic participation put into abeyance. The timing of the Act breathed instability into the election, undermining the ability of candidates and voters in their wards to meaningfully discuss and inform one another of their views on matters of local concern.

The limitation on s. 2(b) rights in this case was the timing of the legislative changes. Ontario offered no explanation, let alone a pressing and substantial one, for why the changes were made in the middle of an ongoing election. In the absence of any evidence or explanation for the timing of the Act, no pressing and substantial objective exists for this limitation and it cannot, therefore, be justified in a free and democratic society.

As for the role of unwritten constitutional principles, there is disagreement with the majority’s observations circumscribing their scope and power in a way that reads down the Court’s binding jurisprudence. Unwritten constitutional principles may be used to invalidate legislation. The precedential Constitution of the United Kingdom is not a written document, but is comprised of unwritten norms, Acts of Parliament, Crown prerogative, conventions, custom of Parliament, and judicial decisions, among other sources. Canada’s Constitution, as a result, embraces unwritten as well as written rules. Unwritten constitutional principles have been held to be the lifeblood of the Constitution and the vital unstated assumptions upon which the text is based. They are not merely “context” or “backdrop” to the text. On the contrary, they are the Constitution’s most basic normative commitments from which specific textual provisions derive. The specific written provisions are elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867. Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles.

Apart from written provisions of the Constitution, principles deriving from the Constitution’s basic structure may constrain government action. Those principles exist independently of and, as in the case of implied fundamental rights before the promulgation of the Charter, prior to the enactment of express constitutional provisions. The legislative bodies in Canada must conform to these basic structural imperatives and can in no way override them. Accordingly, unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with the Constitution’s internal architecture or basic constitutional structure. This would undoubtedly be a rare case; however, to foreclose the possibility that unwritten principles can be used to invalidate legislation in all circumstances is imprudent. It not only contradicts the Court’s jurisprudence, it is fundamentally inconsistent with the case law confirming that unwritten constitutional principles can be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance means upholding, revising or rejecting it.

Unwritten constitutional principles are the foundational organizing principles of the Constitution and have full legal force. They serve to give effect to the structure of the Constitution and function as independent bases upon which to attack the validity of legislation since they have the same legal status as the text. Unwritten constitutional principles not only give meaning and effect to constitutional text and inform the language chosen to articulate the specific right or freedom, they assist in developing an evolutionary understanding of the rights and freedoms guaranteed in the Constitution, which have long been described as a living tree capable of growth and expansion. Unwritten constitutional principles are a key part of what makes the tree grow. They are also substantive legal rules in their own right. In appropriate cases, they may well continue to serve, as they have done in the past, as the basis for declaring legislation unconstitutional.

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Timestamps:

Majority Reasons: Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.

I: Overview: 00:22, paragraphs 1 to 4

II: Facts: 02:13, paragraphs 5 to 12

III: Decisions Below: 07:26, paragraphs 13 to 18

IV: Issues on Appeal: 12:14, paragraph 19

V: Analysis

V(A): Standard of Review: 13:08, paragraphs 20 to 22

V(B): Did the Trial Judge Err by Improperly Instructing the Jury on the Mens Rea Requirement for Section 215 (Failure to Provide Necessaries of Life)? Specifically, Did the Trial Judge Err by Intermingling the Required Foreseeability Standard for Section 215 With the Required Foreseeability Standard for Manslaughter or Unlawfully Causing Bodily Harm?: 14:24, paragraphs 23 to 25

V(B)(1): The Mens Rea Requirements: 15:41, paragraphs 26 to 31

V(B)(2): The Charge Functionally Conveyed the Mens Rea Requirements: 19:28, paragraphs 32 to 40

V(C): Did the Trial Judge Err by Failing to Instruct the Jury on Mr. Goforth’s Circumstances as a Secondary Caregiver During the Mens Rea Instruction for Section 215?: 24:55, paragraphs 41 to 53

V(D): Did the Trial Judge Err by Failing to Explain What Is Meant by a Marked Departure From the Conduct of a Reasonably Prudent Person in the Circumstances?: 32:59, paragraphs 54 to 58

V(E): If the Trial Judge Erred, Can the Curative Proviso Be Applied?: 36:33, paragraph 59

VI: Disposition: 36:50, paragraph 60

Concurring Reasons: Brown, Martin and Jamal JJ.

36:59, paragraphs 61 to 68

Headnote provided by the Supreme Court of Canada:

On November 8, 2011, two girls aged three and two years old were placed in foster care with the accused and his wife. On the night of July 31, 2012, the accused and his wife took the older child to the hospital. She was in cardiac arrest and was not breathing. She was severely emaciated and dehydrated, her weight was significantly below the third percentile for children of her age and gender, and she had multiple bruises and abrasions on her body. She was placed on a life support machine but died on August 2, 2012. The younger child, who was also admitted to hospital, was severely ill due to malnutrition and dehydration, but she survived. She had pneumonia, a urinary tract infection, and a large ulcer on her lower left leg with signs of infection. She also had bruises on her face, open sores and abrasions on the lower spine, and wrap‑around lesions on her wrists and ankles.

The accused and his wife were both charged with, and jointly tried for, second degree murder in relation to the death of the older child and unlawfully causing bodily harm in relation to the younger child. All of these charges were predicated on the alleged failure to provide the children concerned with necessaries of life, contrary to s. 215 of the Criminal Code. The jury convicted the accused’s wife of second degree murder and unlawfully causing bodily harm. As for the accused, the jury acquitted him of second degree murder but convicted him of the lesser and included offence of unlawful act manslaughter, and of unlawfully causing bodily harm. The accused appealed his convictions. The majority of the Court of Appeal set aside his convictions and ordered a new trial. It held that the trial judge had erred in describing the mens rea requirement for the predicate offence of failing to provide necessaries of life and in failing to review and to instruct the jury on the evidence of the accused’s parenting circumstances as a secondary caregiver.

Held: The appeal should be allowed and the convictions restored.

Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.: The jury was properly instructed. The jury charge functionally conveyed the mens rea requirements such that there is no reasonable possibility that the jury would have been confused. The charge also sufficiently recited the evidence about the circumstances that the accused argued prevented him from foreseeing the risk of harm to the children. As well, the jury was well‑equipped to make a common sense assessment of whether failing to provide food or fluids to young children constituted a marked departure from the conduct of a reasonably prudent person.

An accused is entitled to a jury that is properly — and not necessarily perfectly — instructed. Trial judges must be afforded some flexibility in crafting the language of jury instructions, as their role requires them to decant and simplify the law and evidence for the jury. An appellate court must take a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole.

In the instant case, the jury charge was not perfect. With respect to the mens rea requirement for failure to provide necessaries of life, the trial judge did not make a clear distinction in her instructions to the jury between the required foreseeability standard for failing to provide necessaries of life and the required foreseeability standard for manslaughter or unlawfully causing bodily harm. She routinely juxtaposed the two different foreseeability requirements without clearly alerting the jury to how the respective foresight standards corresponded to the respective offences. However, when read as a whole, the trial judge’s instructions functionally conveyed the necessary legal principles. There is no reasonable possibility that the jury was confused about the required mens rea for failing to provide necessaries of life or misled about what the Crown had to prove in order for the jury to find the accused guilty of either manslaughter or unlawfully causing bodily harm.

The trial judge clearly and correctly summarized the required mens rea for failing to provide necessaries of life in one portion of the charge. She invited the jury to consider two straightforward questions to assess whether that requirement had been met. These questions told the jurors exactly what to ask themselves in the circumstances of this case. There is simply no reasonable possibility that any juror would have disregarded these straightforward questions and would have instead chosen to apply the lower foresight standard. Additionally, since the impugned instruction was routinely introduced with the word “further”, the jury would have concluded that both foresight standards had to be satisfied. Finally, defence counsel did not object to the charge at trial and appellate counsel before the Court of Appeal did not initially identify the juxtaposition of the two foreseeability standards as an issue of concern. Although not determinative, defence counsel’s failure to object at trial and appellate counsel’s failure to identify the issue initially on appeal undermine the argument that the jury may have been misled or confused about the appropriate standard.

As to the charge on the accused’s alleged circumstances as a secondary caregiver, the law is clear that personal characteristics of an accused, short of incapacity, are irrelevant. Consideration of personal characteristics injects subjectivity into the objective test, which undermines the purpose of having a single and uniform minimum legal standard of care. While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. The reasonable person is therefore placed in the relevant circumstances of the accused. These circumstances do not personalize the objective standard; they contextualize it.

In the instant case, the accused’s alleged lack of involvement in providing necessaries for the children cannot be characterized as a circumstance. Rather, it constitutes an essential element of the actus reus. The accused had a duty to provide necessaries of life to the children. His utter neglect of them is not a circumstance that can ground his failure to foresee the risk of harm. Moreover, given the evidence of emaciation and neglect of the children, the accused’s alleged reliance on his wife, his alleged limited interaction with the girls, and the girls’ alleged history of being picky eaters and suffering from illness regularly were not circumstances material to the jury’s consideration of whether the accused had the requisite foresight to be criminally liable. The accused was well positioned to observe the children’s condition, yet he did nothing. In any event, the trial judge sufficiently recited the evidence about the accused’s alleged circumstances. The trial judge instructed the jury multiple times on the accused’s evidence relating to his busy schedule and his purported status as a secondary caregiver. Although the more detailed description of the evidence was given in portions of the charge that discussed the actus reus, there is no basis to conclude that the trial judge’s comparably brief recitation of the evidence when discussing mens rea would have caused the jury any confusion. The trial judge also instructed the jury on the accused’s alleged circumstances a final time when outlining the defence theory of the case at the end of her charge.

With respect to the term “marked departure”, a new trial is not warranted simply because the trial judge did not explain its meaning. The alleged marked departure in the instant case relates to whether a reasonable person would have foreseen that failing to provide food or fluids to young children would result in a risk of danger to life or of permanent endangerment to health. Given this context, the jury was easily able to assess whether the failure to provide food or fluids to young children constituted a marked departure from the standard of care of a reasonably prudent person in the circumstances. As well, the accused chose not to request an instruction on the meaning of the term as it was not in his interest to do so and it was inconsistent with his defence at trial that neither he nor his wife ever denied food or fluids to the children and that medical attention was not required up until the time they took the older child to the hospital. The charge was thus adequate because, based on the evidence and the trial as a whole, there was no issue as to whether the failure to provide food or fluids to young children constituted a marked departure — it was not a difficult concept to understand or apply in the circumstances.

Per Brown, Martin and Jamal JJ.: The jury charge, when viewed from the functional perspective required by the jurisprudence, did not properly equip the jury to decide the case according to law. However, as no substantial wrong or miscarriage of justice flowed from the deficient instructions, the curative proviso should be applied. There is therefore agreement with the majority that the appeal should be allowed and the convictions restored.

The functional approach requires the charge to be read as a whole and asks whether an appellate court can be satisfied that the jury would have adequately understood the issues involved, the law relating to the charge the accused was facing, and the evidence to be considered in resolving the issues. The jury must not be left to, in effect, cobble together its owncharge by guessing correctly about which part of the charge to follow and which part to disregard.

In the instant case, at many points, the jury charge misstated an essential element of the offence that comprised the central issue, being whether the Crown had established the mens rea for the offence of failing to provide the necessaries of life. This charge may have been functionally adequate from the standpoint of a reviewing court searching for a correct instruction. But that is not the same thing as a charge that is functionally adequate for the purposes of a jury knowing the law that it must apply to the evidence. By commingling, confusing and routinely and with frequency substituting the differing standards of foreseeability of harm (as between manslaughter and failing to provide the necessaries of life), the trial judge left the jury equipped with a charge that, in critical sections, is not comprehensible to a legally trained reader, let alone to a layperson juror. Compounding the confusion, the jury charge addressed the mens rea under a heading relating to the actus reus. It cannot plausibly be maintained that this charge left the jury equipped to do its job.

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Notable Timestamps:

The judgment of Dickson C.J. and Lamer J.: 0:00:11 to 1:06:09

The Constitutional Questions before the Court: 0:03:59 to 0:05:46

Relevant Statutory and Constitutional Provisions: 0:05:52 to 0:10:39

Section 7 of the Charter: 0:12:15 to 0:52:48

Section 1 Analysis: 0:52:49 to 0:58:50

Conclusion: 1:04:29 to 1:11:00

The reasons of Beetz and Estey JJ.: 1:06:10 to 2:42:56

Outline (Summary): 1:07:29 to 1:10:59

Section 251 of the Criminal Code: 1:11:00 to 1:22:49

The Right to Security of the Person in s. 7 of the Charter: 1:22:49 to 1:27:30

Delays Caused by s. 251 Procedure in Violation of Security of the Person: 1:27:30 to 1:54:13

The Principals of Fundamental Justice: 1:54:13 to 2:24:11

Section 1 of the Charter: 2:24:11 to 2:35:19

The dissenting reasons of McIntyre and La Forest JJ.: 2:42:57 to 3:35:03

Section 251 of the Criminal Code: 2:43:49 to 2:49:38

The Right to Abortion and s. 7 of the Charter: 3:00:05 to 3:13:23

History of the Law of Abortion: 3:05:15

Procedural Fairness: 3:13:23 to 3:25:53

Conclusion: 3:29:17 to 3:32:43

The reasons of Wilson J.: 3:35:04 to 4:19:27

The Right of Access to Abortion: 3:36:42 to 3:59:28

The Scope of the Right under s. 7: 3:59:28 to 4:18:53

Headnote provided by the Supreme Court of Canada:

Appellants, all duly qualified medical practitioners, set up a clinic to perform abortions upon women who had not obtained a certificate from a therapeutic abortion committee of an accredited or approved hospital as required by s. 251(4) of the Criminal Code. The doctors had made public statements questioning the wisdom of the abortion laws in Canada and asserting that a woman has an unfettered right to choose whether or not an abortion is appropriate in her individual circumstances. Indictments were preferred against the appellants charging that they had conspired with each other with intent to procure abortions contrary to ss. 423(1)(d) and 251(1) of the Criminal Code.

Counsel for the appellants moved to quash the indictment or to stay the proceedings before pleas were entered on the grounds that s. 251 of the Criminal Code was ultra vires the Parliament of Canada, in that it infringed ss. 2(a), 7 and 12 of the Charter, and was inconsistent with s. 1(b) of the Canadian Bill of Rights. The trial judge dismissed the motion, and the Ontario Court of Appeal dismissed an appeal from that decision. The trial proceeded before a judge sitting with a jury, and the three accused were acquitted. The Crown appealed the acquittal and the appellants filed a cross-appeal. The Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial. The Court held that the cross-appeal related to issues already raised in the appeal, and the issues, therefore, were examined as part of the appeal.

The Court stated the following constitutional questions:
1. Does section 251 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?

1. If section 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

2. Is section 251 of the Criminal Code of Canada ultra vires the Parliament of Canada?

3. Does section 251 of the Criminal Code of Canada violate s. 96 of the Constitution Act, 1867?

4. Does section 251 of the Criminal Code of Canada unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?

5. Do sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms?

6. If sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are ss. 605 and 610(3) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Held (McIntyre and La Forest JJ. dissenting): The appeal should be allowed and the acquittals restored. The first constitutional question should be answered in the affirmative as regards s. 7 and the second in the negative as regards s. 7. The third, fourth and fifth constitutional questions should be answered in the negative. The sixth constitutional question should be answered in the negative with respect to s. 605 of the Criminal Code and should not be answered as regards s. 610(3). The seventh constitutional question should not be answered.

Per Dickson C.J. and Lamer J.: Section 7 of the Charter requires that the courts review the substance of legislation once the legislation has been determined to infringe an individual's right to "life, liberty and security of the person". Those interests may only be impaired if the principles of fundamental justice are respected. It was sufficient here to investigate whether or not the impugned legislative provisions met the procedural standards of fundamental justice and the Court accordingly did not need to tread the fine line between substantive review and the adjudication of public policy.

State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.

Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. These principles are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory.

The procedure and restrictions stipulated in s. 251 for access to therapeutic abortions make the defence illusory resulting in a failure to comply with the principles of fundamental justice. A therapeutic abortion may be approved by a "therapeutic abortion committee" of an "accredited or approved hospital". The requirement of s. 251(4) that at least four physicians be available at that hospital to authorize and to perform an abortion in practice makes abortions unavailable in many hospitals. The restrictions attaching to the term "accredited" automatically disqualifies many Canadian hospitals from undertaking therapeutic abortions. The provincial approval of a hospital for the purpose of performing therapeutic abortions further restricts the number of hospitals offering this procedure. Even if a hospital is eligible to create a therapeutic abortion committee, there is no requirement in s. 251 that the hospital need do so. Provincial regulation as well can heavily restrict or even deny the practical availability of the exculpatory provisions of s. 251(4).

The administrative system established in s. 251(4) fails to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted. The word "health" is vague and no adequate guidelines have been established for therapeutic abortion committees. It is typically impossible for women to know in advance what standard of health will be applied by any given committee.

The argument that women facing difficulties in obtaining abortions at home can simply travel elsewhere would not be especially troubling if those difficulties were not in large measure created by the procedural requirements of s. 251. The evidence established convincingly that it is the law itself which in many ways prevents access to local therapeutic abortion facilities.

Section 251 cannot be saved under s. 1 of the Charter. The objective of s. 251 as a whole, namely to balance the competing interests identified by Parliament, is sufficiently important to pass the first stage of the s. 1 inquiry. The means chosen to advance its legislative objectives, however, are not reasonable or demonstrably justified in a free and democratic society. None of the three elements for assessing the proportionality of means to ends is met. Firstly, the procedures and administrative structures created by s. 251 are often unfair and arbitrary. Moreover, these procedures impair s. 7 rights far more than is necessary because they hold out an illusory defence to many women who would prima facie qualify under the exculpatory provisions of s. 251(4). Finally, the effects of the limitation upon the s. 7 rights of many pregnant women are out of proportion to the objective sought to be achieved and may actually defeat the objective of protecting the life and health of women.

Per Beetz and Estey JJ.: Before the advent of the Charter, Parliament recognized, in adopting s. 251(4) of the Criminal Code, that the interest in the life or health of the pregnant woman takes precedence over the interest in prohibiting abortions, including the interest of the state in the protection of the foetus, when "the continuation of the pregnancy of such female person would or would be likely to endanger her life or health". This standard in s. 251(4) became entrenched at least as a minimum when the "right to life, liberty and security of the person" was enshrined in the Canadian Charter of Rights and Freedoms at s. 7.

"Security of the person" within the meaning of s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated.

According to the evidence, the procedural requirements of s. 251 of the Criminal Code significantly delay pregnant women's access to medical treatment resulting in an additional danger to their health, thereby depriving them of their right to security of the person. This deprivation does not accord with the principles of fundamental justice. While Parliament is justified in requiring a reliable, independent and medically sound opinion as to the "life or health" of the pregnant woman in order to protect the state interest in the foetus, and while any such statutory mechanism will inevitably result in some delay, certain of the procedural requirements of s. 251 of the Criminal Code are nevertheless manifestly unfair. These requirements are manifestly unfair in that they are unnecessary in respect of Parliament's objectives in establishing the administrative structure and in that they result in additional risks to the health of pregnant women.

The following statutory requirements contribute to the manifest unfairness of the administrative structure imposed by the Criminal Code: (1) the requirement that all therapeutic abortions must take place in an "accredited" or "approved" hospital as defined in s. 251(6); (2) the requirement that the committee come from the accredited or approved hospital in which the abortion is to be performed; (3) the provision that allows hospital boards to increase the number of members of a committee; (4) the requirement that all physicians who practise lawful therapeutic abortions be excluded from the committees.

The primary objective of s. 251 of the Criminal Code is the protection of the foetus. The protection of the life and health of the pregnant woman is an ancillary objective. The primary objective does relate to concerns which are pressing and substantial in a free and democratic society and which, pursuant to s. 1 of the Charter, justify reasonable limits to be put on a woman's right. However, the means chosen in s. 251 are not reasonable and demonstrably justified. The rules unnecessary in respect of the primary and ancillary objectives which they are designed to serve, such as the above-mentioned rules contained in s. 251, cannot be said to be rationally connected to these objectives under s. 1 of the Charter. Consequently, s. 251 does not constitute a reasonable limit to the security of the person.

It is not necessary to answer the question concerning the circumstances in which there is a proportionality between the effects of s. 251 which limit the right of pregnant women to security of the person and the objective of the protection of the foetus. In any event, the objective of protecting the foetus would not justify the severity of the breach of pregnant women's right to security of the person which would result if the exculpatory provision of s. 251 was completely removed from the Criminal Code. However, it is possible that a future enactment by Parliament that would require a higher degree of danger to health in the latter months of pregnancy, as opposed to the early months, for an abortion to be lawful, could achieve a proportionality which would be acceptable under s. 1of theCharter.

Given the conclusion that s. 251 contains rules unnecessary to the protection of the foetus, the question as to whether a foetus is included in the word "everyone" in s. 7, so as to have a right to "life, liberty and security of the person" under the Charter, need not be decided.

Section 251 is not colourable provincial legislation in relation to health but rather a proper exercise of Parliament's criminal law power pursuant to s. 91(27) of the Constitution Act, 1867. The section does not offend s. 96 of the Constitution Act, 1867 because the therapeutic abortion committees are not given judicial powers which were exercised by county, district and superior courts at the time of Confederation. These committees exercise a medical judgment on a medical question. Finally, s. 251 does not constitute an unlawful delegation of federal legislative power nor does it represent an abdication of the criminal law power by Parliament.

There is no merit in the argument based on s. 605(1)(a) of the Criminal Code. It is unnecessary to decide whether or not s. 610(3) of the Criminal Code violates ss. 7, 11(d), (f), (h) and 15 of the Charter or whether this Court has the power to award costs on appeals under s. 24(1) of the Charter. Whatever this Court's power to award costs in appeals such as this one, costs should not be awarded in this case.

Per Wilson J.: Section 251 of the Criminal Code, which limits the pregnant woman's access to abortion, violates her right to life, liberty and security of the person within the meaning of s. 7 of the Charter in a way which does not accord with the principles of fundamental justice.

The right to "liberty" contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them.

A woman's decision to terminate her pregnancy falls within this class of protected decisions. It is one that will have profound psychological, economic and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well.

Section 251 of the Criminal Code takes a personal and private decision away from the woman and gives it to a committee which bases its decision on "criteria entirely unrelated to [the pregnant woman's] own priorities and aspirations".

Section 251 also deprives a pregnant woman of her right to security of the person under s. 7 of the Charter. This right protects both the physical and psychological integrity of the individual. Section 251 is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman's physical "person".

This violation of s. 7 does not accord with either procedural fairness or with the fundamental rights and freedoms laid down elsewhere in the Charter. A deprivation of the s. 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles of fundamental justice.

The deprivation of the s. 7 right in this case offends freedom of conscience guaranteed in s. 2(a) of the Charter. The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state. Indeed, s. 2(a) makes it clear that this freedom belongs to each of us individually. "Freedom of conscience and religion" should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality and the terms "conscience" and "religion" should not be treated as tautologous if capable of independent, although related, meaning. The state here is endorsing one conscientiously-held view at the expense of another. It is denying freedom of conscience to some, treating them as means to an end, depriving them of their "essential humanity".

The primary objective of the impugned legislation is the protection of the foetus. This is a perfectly valid legislative objective. It has other ancillary objectives, such as the protection of the life and health of the pregnant woman and the maintenance of proper medical standards.

The situation respecting a woman's right to control her own person becomes more complex when she becomes pregnant, and some statutory control may be appropriate. Section 1 of the Charter authorizes reasonable limits to be put upon the woman's right having regard to the fact of the developing foetus within her body.

The value to be placed on the foetus as potential life is directly related to the stage of its development during gestation. The undeveloped foetus starts out as a newly fertilized ovum; the fully developed foetus emerges ultimately as an infant. A developmental progression takes place between these two extremes and it has a direct bearing on the value of the foetus as potential life. Accordingly, the foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman's autonomy would be absolute and a restrictive approach in the later stages where the states's interest in protecting the foetus would justify its prescribing conditions. The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines.

Section 251 of the Criminal Code cannot be saved under s. 1 of the Charter. It takes the decision away from the woman at all stages of her pregnancy and completely denies, as opposed to limits, her right under s. 7. Section 251 cannot meet the proportionality test; it is not sufficiently tailored to the objective; it does not impair the woman's right "as little as possible". Accordingly, even if s. 251 were to be amended to remedy the procedural defects in the legislative scheme, it would still not be constitutionally valid.

The question whether a foetus is covered by the word "everyone" in s. 7 so as to have an independent right to life under that section was not dealt with.

Per McIntyre and La Forest JJ. (dissenting): Save for the provisions of the Criminal Code permitting abortion where the life or health of the woman is at risk, no right of abortion can be found in Canadian law, custom or tradition and the Charter, including s. 7, does not create such a right. Section 251 of the Criminal Codeaccordingly does not violate s. 7 of the Charter.

The power of judicial review of legislation, although given greater scope under the Charter, is not unlimited. The courts must confine themselves to such democratic values as are clearly expressed in the Charter and refrain from imposing or creating rights with no identifiable base in the Charter. The Court is not entitled to define a right in a manner unrelated to the interest that the right in question was meant to protect.

The infringement of a right such as the right to security of the person will occur only when legislation goes beyond interfering with priorities and aspirations and abridges rights included in or protected by the concept. The proposition that women enjoy a constitutional right to have an abortion is devoid of support in either the language, structure or history of the constitutional text, in constitutional tradition, or in the history, traditions or underlying philosophies of our society.

Historically, there has always been a clear recognition of a public interest in the protection of the unborn and there is no evidence or indication of general acceptance of the concept of abortion at will in our society. The interpretive approach to the Charter adopted by this Court affords no support for the entrenchment of a constitutional right of abortion.

As to the asserted right to be free from state interference with bodily integrity and serious state-imposed psychological stress, an invasion of the s. 7 right of security of the person, there would have to be more than state-imposed stress or strain. A breach of the right would have to be based upon an infringement of some interest which would be of such nature and such importance as to warrant constitutional protection. This would be limited to cases where the state-action complained of, in addition to imposing stress and strain, also infringed another right, freedom or interest which was deserving of protection under the concept of security of the person. Abortion is not such an interest. Even if a general right to have an abortion could be found under s. 7, the extent to which such right could be said to be infringed by the requirements of s. 251 of the Code was not clearly shown.

A defence created by Parliament could only be said to be illusory or practically so when the defence is not available in the circumstances in which it is held out as being available. The very nature of the test assumes that Parliament is to define the defence and, in so doing, designate the terms upon which it may be available. The allegation of procedural unfairness is not supported by the claim that many women wanting abortions have been unable to get them in Canada because the failure ofs. 251(4)to respond to this need. This machinery was considered adequate to deal with the type of abortion Parliament had envisaged. Any inefficiency in the administrative scheme is caused principally by forces external to the statute -- the general demand for abortion irrespective of the provisions of s. 251. A court cannot strike down a statutory provision on this basis.

Section 605(1)(a), which gives the Crown a right of appeal against an acquittal in a trial court on any ground involving a question of law alone, does not offend ss. 7, 11(d), (f) and (h) of the Charter. The words of s. 11(h), "if finally acquitted" and "if finally found guilty", must be construed to mean after the appellate procedures have been completed, otherwise there would be no point or meaning in the word "finally".
Section 251 did not infringe the equality rights of women, abridge freedom of religion, or inflict cruel or unusual punishment. The section was not in pith and substance legislation for the protection of health and therefore within provincial competence but rather was validly enacted under the federal criminal law power. There was no merit to the arguments that s. 251 purported to give powers to therapeutic abortion committees exercised by county, district, and superior courts at the time of Confederation or that it delegated powers relating to criminal law to the provinces generally. No evidence supported the defence of necessity.

Per Curiam: In a trial before judge and jury, the judge's role is to state the law and the jury's role is to apply that law to the facts of the case. To encourage a jury to ignore a law it does not like could not only lead to gross inequities but could also irresponsibly disturb the balance of the criminal law system. It was quite simply wrong to say to the jury that if they did not like the law they need not enforce it. Such practice, if commonly adopted, would undermine and place at risk the whole jury system.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

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Timestamps:

I: Introduction: 0:00:18, paragraphs 1 to 4

II: Factual Background: 0:02:07, paragraphs 5 to 29

III: Judicial History

III(A): Disposition Hearing under Section 37 of the Child Protection Act: Supreme Court of Prince Edward Island, 2020 PESC 23 (Key J.): 0:11:14, paragraphs 30 to 42

III(B): Court of Appeal for Prince Edward Island, 2020 PECA 14 (Jenkins C.J.P.E.I. and Murphy and Mitchell JJ.A.): 0:18:32, paragraphs 43 to 49

IV: Issues: 0:22:08, paragraph 50

V: Analysis: 0:22:35, paragraph 51

V(A): The Standard of Review on a Determination of the Best Interests of the Child: 0:23:27, paragraphs 52 to 59

V(B): The Assessment of the Best Interests of the Child Was Free of Error: 0:28:51, paragraph 60

V(C): The Hearing Judge Did Not Err in Considering the Director’s Conduct: 0:29:32, paragraphs 61 to 62

V(C)(1): The Judicial Supervisory Obligation for Children in State Care: 0:30:51, paragraphs 63 to 67

V(C)(2): The Director’s Conduct Situated the Status Quo and the Director’s Position: 0:33:32, paragraph 68

V(C)(2)(a): Situating the Status Quo: 0:33:49, paragraphs 69 to 74

V(C)(2)(b): Situating the Director’s Position and Actions: 0:39:01, paragraphs 75 to 76

V(C)(3): The Director’s Conduct Grounded the Assessment of the Evidence: 0:40:48, paragraph 77

V(C)(3)(a): The Parents’ Willingness to Facilitate Access: 0:41:16, paragraphs 78 to 79

V(C)(3)(b): The Expert Evidence: 0:42:25, paragraphs 80 to 84

V(D): The Hearing Judge Did Not Err in Her Approach to the Father’s Biological Ties: 0:45:06, paragraphs 85 to 87

V(D)(1): The Historical Approach to Biology in the Assessment of a Child’s Best Interests: 0:46:57, paragraphs 88 to 90

V(D)(2): Biological Ties Will Generally Carry Limited Weight in the Assessment of a Child’s Best Interest: 0:49:01, paragraphs 91 to 109

V(D)(3): Biology Does Not Carry Significant Weight in This Case: 1:00:07, paragraphs 110 to 112

VI: Disposition: 1:01:14, paragraphs 113 to 114

Headnote provided by the Supreme Court of Canada:

In January 2018, a four‑year‑old child was apprehended by the Director of Child Protection in Prince Edward Island (“Director”), giving rise to lengthy child protection proceedings. The child’s parents had a turbulent relationship. They were married in May 2012 and then lived together in Alberta. In 2013, the mother left the father and moved to Prince Edward Island after an alleged incident of domestic violence. At the time, the father was unaware that the mother was pregnant. The mother struggled to care for the child after he was born in October 2013, as she battled significant mental health challenges. When the child was three months old, the maternal grandmother arrived in Prince Edward Island and, for approximately two years, lived with the child and the mother, supported them financially and provided daily care to the child. The grandmother left for approximately one year and then returned to Prince Edward Island in March 2017 and resumed her role as the child’s caregiver. This arrangement ended abruptly in August 2017 when the mother’s condition worsened and she refused to allow the grandmother to contact the child. A few months later the child was apprehended by the Director. A court found the child was in need of protection, and the Director was granted temporary custody of the child.

After the child was placed in the Director’s temporary custody, the Director entered into a foster parenting agreement with the grandmother and placed the child in her day‑to‑day care. The father was contacted by the Director in February 2019 and advised that he had a child. He wanted the child to live with him in Alberta and began to prepare for parenthood. He retained the services of an expert psychologist and flew to Prince Edward Island to meet the child in June 2019, where daily and then unsupervised visits were allowed by the Director. Shortly before his visit, the grandmother informed the Director about allegations of violence by the father. The Director continued to allow the father to visit the child and amended its application to support the father’s bid for permanent custody. During the father’s visit, the grandmother filed a motion for an order designating her a “parent” under the Child Protection Act, which was granted in early July. The next day, the Director ended the foster parenting arrangement with the grandmother and removed the child from her care, placing him with foster parents. Four weeks later, the Director sent the child to Alberta for a second visit with the father. The Director then decided to make the visit indefinite.

The grandmother and the father both sought permanent custody of the child. At a disposition hearing in Prince Edward Island, it was concluded that it was in the child’s best interests to be placed with the grandmother. The hearing judge found that the grandmother would promote the child’s relationship with the father and his family, but the father would not ensure the child would have a meaningful relationship with his family in Prince Edward Island unless ordered by the court. The hearing judge also found the Director’s goal was to assist the father to become the child’s parent without considering the possibility of the grandmother as the child’s guardian. A majority of the Court of Appeal reversed this decision and granted custody to the father. It concluded that the hearing judge considered an irrelevant factor, being the Director’s conduct, and failed to consider the father’s argument that as a natural parent, his custody claim should be favoured.

Held: The appeal should be allowed and the order of the hearing judge restored.

The Court’s decision in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, governs as the applicable standard of review when assessing a hearing judge’s conclusions concerning custody in a child welfare context. The guiding principle and paramount consideration in custody matters is the best interests of the child, as it is under s. 2(2) of the Child Protection Act. In this legislation, as in others, no priority is given to one factor over the other. The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretion with regard to the evidence before the court. As a result, an appellate court must act with restraint when reviewing a hearing judge’s conclusions concerning custody in a child welfare context and may only intervene where there has been a material error, a serious misapprehension of the evidence, or an error in law. Significant deference is owed to a determination made by a judge at first instance of which custody arrangement is preferable in light of a child’s best interests and an appellate court is not permitted to redo a lower court’s analysis to achieve a result that it believes is preferable in the best interests of the child. Nothing in s. 2(2) of the Child Protection Act supports or suggests a different standard of appellate review. In the instant case, in awarding permanent custody to the father, the majority of the Court of Appeal failed to afford the appropriate level of deference to the hearing judge’s assessment. The hearing judge’s determination of the child’s best interests was grounded in a thorough assessment of the extensive evidence in the proceedings. In light of the evidentiary record, the hearing judge conducted an assessment that disclosed no material error, serious misapprehension of the evidence, or legal error.

The hearing judge’s consideration of the Director’s conduct did not inappropriately taint her analysis. No general principle prevents a judge on a best interests of the child analysis from considering the actions of a child protection agency. Such inquiries are not only permissible, they may in some circumstances be required on account of the court’s essential oversight role in child welfare matters and its parens patriae jurisdiction. A judge has the authority to address how the child protection agency’s decisions may have serious implications in the best interests analysis. An agency’s conduct may have shaped, even defined, the factual matrix before the court, including the parties’ positions and conduct and the status quo relevant to a child’s best interests. A court is entitled to look behind the veil of an existing status quo to understand how it came about and to assess whether that status quo is itself in the child’s best interests. Faced with representations from a child protection agency regarding the fitness of parents, a court should not be prohibited from considering the manner in which the agency investigated and treated the parties involved to assess the weight that can be placed on such evidence or arguments. In the present case, after the initial apprehension, the Director directed every aspect of the child’s life: where and with whom he lived, where he went to school, and who could see him when and the terms of their access. It was, therefore, not a legal error for the hearing judge to consider the Director’s conduct insofar as it allowed her to gain an understanding of what had happened, how a certain status quo was created, and the conduct and position of the parties. It was open to the hearing judge to take into account the different treatment provided to the father and the grandmother and to conclude that the Director promoted the child’s relationship with his father over the pre‑existing connection with the grandmother. The hearing judge was also allowed to consider how any unbalanced facilitation of access the Director gave to each parent would have had an impact on their bond with the child.

The hearing judge could also turn to the Director’s evidence and conduct to allow her to properly assess (1) the claims made by the father and the grandmother as to their appetite and ability to facilitate access with the other parent, and (2) the impartiality of the expert witness and the weight to be given to her evidence. The hearing judge was obliged to consider the objectivity and impartiality of the expert opinion evidence to ascertain both its threshold admissibility and the weight that should ultimately be ascribed to it. The hearing judge was well within her authority to conclude that while the expert psychologist’s evidence was probative insofar as it spoke to the father’s parenting abilities, her evidence merited less weight when she opined on the child’s ultimate placement. The hearing judge committed no reviewable error and was entitled to determine the weight to be given the expert’s opinion.

Furthermore, the hearing judge made no error in her approach to the father’s biological tie to the child. While it is not an error for a court to consider a biological tie in itself in evaluating a child’s best interests, a biological tie should generally carry minimal weight in the assessment. A parent’s mere biological tie is simply one factor among many that may be relevant to a child’s best interests and judges are not obliged to treat biology as a tie‑breaker when two prospective custodial parents are otherwise equal. Placing too great an emphasis on a biological tie may lead some decision makers to give effect to the biological parent’s claim over the child’s best interests and parental preferences should not usurp the focus on the child’s interests. A child’s bond is a consideration that should prevail over the “empty formula” of a biological tie. A biological connection is no guarantee against harm to a child and a child can be equally attached to persons who are not their biological parents and those persons can be equally capable of meeting the child’s needs. In addition, the benefit of a biological tie itself may be intangible and difficult to articulate, which makes it difficult to prioritize it over other best interests factors that are more concrete. The importance of a biological tie may also diminish as children are increasingly raised in families where those ties do not define a child’s family relationships. Further, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child. In the instant case, none of the enumerated factors in s. 2(2) of the Child Protection Act specifically relate to a parent’s biological tie; therefore, a court is not directed to consider a child’s biological relationship with the party seeking custody. The Court of Appeal overstated the importance of the father’s biological tie to the child. The hearing judge was not compelled to decide in favour of the father after concluding the two parties were more or less equal. It was open to her to dispose of the case based on a factor that she considered more significant: the question of which parent was more likely to maintain the child’s relationship with the other parent.

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Timestamps:

I: Introduction: 0:00:15, paragraphs 1 to 9

II: Background and Judicial History

II(A): Facts: 0:04:32, paragraphs 10 to 12

II(B): Quebec Superior Court, 2019 QCCS 354 (Huot J.): 0:06:22, paragraphs 13 to 19

II(C): Quebec Court of Appeal, 2020 QCCA 1585 (Doyon, Gagnon and Bélanger JJ.A.): 0:10:47, paragraphs 20 to 24

III: Issues: 0:14:03, paragraphs 25 to 26

IV: Analysis:

IV(A): History of Section 745:51 Cr: C: 0:14:55, paragraphs 27 to 36

IV(B): The Parole System in Canada: 0:19:17, paragraphs 37 to 44

IV(C): Sentencing Objectives in Canadian Law: 0:23:14, paragraphs 45 to 53

IV(D): The Right Under Section 12 of the Charter Not to Be Subjected to Cruel and Unusual Punishment: 0:27:30, paragraphs 54 to 55

IV(D)(1): The Parole Ineligibility Period Constitutes Punishment: 0:28:05, paragraphs 56 to 58

IV(D)(2): The Two Prongs of the Right Not to Be Subjected to Cruel and Unusual Punishment: 0:29:17, paragraphs 59 to 70

IV(E): Does Section 745:51 Cr: C: Infringe Section 12 of the Charter?: 0:36:48, paragraphs 71 to 73

IV(E)(1): Scope of Section 745:51 Cr: C: 0:39:13, paragraphs 74 to 80

IV(E)(2): Imprisonment for Life Without a Realistic Possibility of Parole Constitutes Punishment That Is Cruel and Unusual by Nature: 0:43:01, paragraph 81

IV(E)(2)(a): Examination of the Nature of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole: 0:43:45, 82 to 95

IV(E)(2)(b): Effects of a Sentence of Imprisonment for Life Without a Realistic Possibility of Parole: 0:52:46, paragraphs 96 to 97

IV(E)(2)(c): Dignity and Imprisonment for Life Without the Possibility of Parole: International and Comparative Law Perspectives: 0:54:10, paragraphs 98 to 108

IV(E)(2)(d): Does the Judicial Discretion to Impose Consecutive Parole Ineligibility Periods Affect the Constitutionality of the Impugned Provision?: 1:03:13, paragraphs 109 to 111

IV(E)(2)(e): Can the Royal Prerogative of Mercy Save the Impugned Provision?: 1:05:15, paragraphs 112 to 119

IV(F): Is the Infringement of Section 12 of the Charter Justified Under Section 1 of the Charter?: 1:10:23, paragraphs 120 to 121

IV(G): Appropriate Remedy: 1:11:25, paragraphs 122 to 138

V: Conclusion: 1:21:48, paragraphs 139 to 148

Headnote provided by the Supreme Court of Canada:

On January 29, 2017, 46 people were gathered in the Great Mosque of Québec for evening prayer. B burst in and, armed with a semi‑automatic rifle and a pistol, opened fire on the worshippers, causing the death of 6 people and seriously injuring 5 others. B pleaded guilty to the 12 charges laid against him, including 6 counts of first degree murder. An accused who is convicted of first degree murder will receive a minimum sentence of imprisonment for life and will be eligible for parole only after serving an ineligibility period of 25 years. B therefore received that sentence automatically. The Crown also asked that s. 745.51 of the Criminal Code be applied. This provision authorizes a court to order that the periods without eligibility for parole for each murder conviction be served consecutively rather than concurrently. In the context of first degree murders, the application of this provision allows a court to add up parole ineligibility periods of 25 years for each murder.

B challenged the constitutionality of s. 745.51. The trial judge held that this provision infringed the right not to be subjected to any cruel and unusual treatment or punishment and the right to liberty and security of the person guaranteed to B by s. 12 and s. 7 of the Charter, respectively, and that the provision could not be saved under s. 1. To remedy the unconstitutionality of the provision, the trial judge applied the technique of reading in and interpreted s. 745.51 as granting courts a discretion to choose the length of the additional ineligibility period to impose on an offender. He ordered that B serve a total ineligibility period of 40 years before being able to apply for parole. The Court of Appeal allowed B’s appeal and declared s. 745.51 invalid and unconstitutional on the basis that it was contrary to ss. 12 and 7 of the Charter. It noted that the declaration of unconstitutionality was to take effect immediately. It found that reading in was inappropriate, and it therefore struck down the unconstitutional provision. It accordingly ordered that B serve a 25‑year parole ineligibility period on each count before being able to apply for parole and that these periods be served concurrently.

Held: The appeal should be dismissed.

Section 745.51 of the Criminal Code is contrary to s. 12 of the Charter and is not saved under s. 1. It must be declared to be of no force or effect immediately under s. 52(1) of the Constitution Act, 1982, and the declaration must strike down the impugned provision retroactively to the date it was enacted. In the case of multiple first degree murders, s. 745.51 authorizes the imposition of sentences of imprisonment that effectively deprive all offenders who receive such sentences of a realistic possibility of being granted parole before they die. Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re‑enter society. B’s total parole ineligibility period must therefore be 25 years, in accordance with the law as it existed prior to the enactment of s. 745.51.

Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In essence, the purpose of s. 12 of the Charter is to protect human dignity and ensure respect for the inherent worth of each individual. The protection afforded by s. 12 has two prongs. Section 12 protects, first, against the imposition of a punishment that is so excessive as to be incompatible with human dignity and, second, against the imposition of a punishment that is intrinsically incompatible with human dignity. The first prong of the s. 12 guarantee relates to punishment whose effect is grossly disproportionate to what would have been appropriate. The second prong of the protection afforded by s. 12 concerns a narrow class of punishments that are cruel and usual by nature; these punishments will always be grossly disproportionate because they are intrinsically incompatible with human dignity.

A punishment is cruel and unusual by nature if the court is convinced that, having regard to its nature and effects, it could never be imposed in a manner consonant with human dignity in the Canadian criminal context. To determine whether a punishment is intrinsically incompatible with human dignity, the court must determine whether the punishment is, by its very nature, degrading or dehumanizing. The effects that the punishment may have on all offenders on whom it is imposed can also inform the court and provide support for its analysis of the nature of the punishment. A punishment that is cruel and unusual by nature must always be excluded from the arsenal of punishments available to the state. It follows that the mere possibility that a punishment that is cruel and unusual by nature may be imposed is enough to infringe s. 12 of the Charter.

Where both prongs of the protection of s. 12 are in issue in the same case, the analysis of the nature of the punishment must precede that of gross disproportionality. If the punishment that might be imposed is cruel and unusual by nature, and hence intrinsically incompatible with human dignity, it will be pointless to consider whether the punishment is grossly disproportionate in a given case, because it will by definition always be grossly disproportionate.

The parole ineligibility period constitutes punishment for the purposes of s. 12. State action is considered to be punishment for the purposes of s. 12 if it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either it is imposed in furtherance of the purpose and principles of sentencing, or it has a significant impact on an offender’s liberty or security interests. The length of parole ineligibility is part of an offender’s punishment given that it is a consequence of conviction and that it has a significant impact on the offender’s interests in liberty and security of the person. It also furthers the objectives of denunciation and deterrence that underlie a sentence. The imposition of consecutive parole ineligibility periods authorized by s. 745.51 therefore constitutes punishment, the constitutionality of which must be determined under s. 12 of the Charter.

Section 745.51 effectively authorizes the imposition of a sentence of imprisonment for life without a realistic possibility of parole. This punishment is, by its very nature, intrinsically incompatible with human dignity. It is degrading in nature in that it presupposes at the time of its imposition that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation. Although Parliament has latitude to establish sentences whose severity expresses society’s condemnation of the offence committed, it may not prescribe a sentence that deprives every offender on whom it is imposed of any realistic possibility of parole from the outset. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation, even in cases where this objective is of minimal importance. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re‑entering society. The intent here is not to have the objective of rehabilitation prevail over all the others, but rather to preserve a certain place for it in a penal system based on respect for the inherent dignity of every individual, including the vilest of criminals. Where the offence of first degree murder is concerned, rehabilitation is already subordinate to the objectives of denunciation and deterrence, as can be seen from the severity of the mandatory minimum sentence for this offence.

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy. The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system. A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity. Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them. Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

The royal prerogative of mercy, which gives Her Majesty the Queen an absolute discretion to grant a remission of sentence to any individual sentenced by a court, cannot save the impugned provision. The royal prerogative of mercy cannot be considered a true sentence review mechanism, because it is exercised only in exceptional circumstances. It is at best a release mechanism based on compassion and on the existence of humanitarian grounds, which means that individuals suffering the normal consequences of a properly imposed sentence are unlikely to obtain such a pardon. The existence of the royal prerogative of mercy therefore creates no realistic possibility of parole for offenders serving a sentence of imprisonment for life for which there is no other review mechanism.

The infringement of s. 12 of the Charter is not justified under s. 1. In order to justify an infringement of a Charter right, the state is required to show that the impugned law addresses a pressing and substantial objective and that the means chosen to achieve that objective are proportional to it. In this case, since no arguments were made concerning the justification for the impugned provision, the state did not discharge the onus resting on it.

The appropriate remedy in this case is a declaration that s. 745.51 is of no force or effect immediately pursuant to s. 52(1) of the Constitution Act, 1982, under which any law that is inconsistent with the provisions of the Constitution can be declared to be of no force or effect to the extent of the inconsistency. The technique of reading in is inappropriate in the circumstances. This technique allows a court to extend the reach of a statute so that it includes what was wrongly excluded from it. When a court applies this interpretive technique, it does so on the assumption that had Parliament been aware of the provision’s constitutional defect, it would likely have passed it with the alterations made by the court. In this case, however, the imposition of consecutive 25‑year ineligibility periods is directly related to Parliament’s objective in enacting s. 745.51, as shown by the words of the provision and the parliamentary debate. The words of s. 745.51 are clear as regards the length of the ineligibility periods that a court may make consecutive: for first degree murder, these periods must be 25 years under s. 745(a) of the Criminal Code. As well, the parliamentary debate clearly shows that Parliament’s intention was to authorize courts to impose consecutive ineligibility periods in blocks of 25 years. In fact, Parliament specifically rejected a proposed amendment that would have given courts a discretion to determine the total length of the parole ineligibility period. It is therefore impossible to conclude that Parliament would likely have passed the impugned provision with the modifications that would result from applying the technique of reading in as the trial judge did.

The declaration of invalidity must have immediate effect given the seriousness of the infringement of the right of every individual not to be subjected to cruel and unusual punishment. The declaration must also strike down the impugned provision retroactively to the date it was enacted, in view of the continuing nature of the infringement of the right guaranteed by s. 12 of the Charter. The applicable law is therefore the law that existed prior to that date. The 25‑year parole ineligibility periods imposed on B for each of the 6 counts of first degree murder must thus be served concurrently. As a result, B may not apply for parole until he has served a total ineligibility period of 25 years, in accordance with s. 745(a). The Parole Board of Canada remains the ultimate arbiter of whether B can be released on parole at the end of the ineligibility period.

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The text of the full decision can be found here.

For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

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Timestamps:

Majority Reasons: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. delivered by Karakatsanis J.

I: Overview: 0:00:23, paragraphs 1 to 11

II: Background: 0:05:30, paragraphs 12 to 16

III: Decisions Below

III(A): Supreme Court of British Columbia, 2019 BCSC 2192 (Saunders J.): 0:07:53, paragraphs 17 to 21

III(B): Court of Appeal for British Columbia, 2021 BCCA 11 (Newbury, DeWitt-Van Oosten and Voith JJ.A.): 0:09:47, paragraphs 22 to 25

IV: Issues: 0:11:45, paragraphs 26 to 28

V: Analysis

V(A): The Test for Admitting Additional Evidence on Appeal: 0:12:57, paragraphs 29 to 35

V(A)(1): The Palmer Criteria

V(A)(1)(a): Due Diligence: 0:15:50, paragraphs 36 to 43

V(A)(1)(b): The Criteria That the Evidence Be Relevant, Credible and Could Have Affected the Result: 0:19:20, paragraphs 44 to 46

V(A)(1)(c): Palmer Resolves the Tension Between the Need for Finality and Order, and the Interest in Reaching a Just Result: 0:20:57, paragraph 47

V(A)(2): The Palmer Test Applies to Evidence of Facts that Arise After Trial: 0:21:27, paragraphs 48 to 55

V(A)(2)(a): The Due Diligence Criterion: 0:24:09, paragraphs 56 to 61

V(A)(2)(b): The Other Palmer Criteria: 0:27:01, paragraphs 62 to 64

V(A)(3): The Palmer Test in Family Law Cases Involving the Best Interests of the Child: 0:28:10, paragraphs 65 to 66

V(A)(3)(a): A Failure to Meet Due Diligence Is Not Fatal in Exceptional Circumstances: 0:29:13, paragraphs 67 to 72

V(A)(3)(b): The Existence of Variation Schemes That Address Factual Developments That Postdate Trial in Parenting Cases: 0:32:33, paragraphs 73 to 80

V(A)(4): The Use of Properly Admitted Evidence on Appeal: 0:36:04, paragraph 81

V(A)(5): Did the Court of Appeal Err in Admitting the Additional Evidence?: 0:36:32, paragraphs 82 to 91

V(B): The Framework Governing Relocation Cases: 0:40:28, paragraphs 92 to 95

V(B)(1): The Best Interests of the Child: 0:42:20, paragraphs 96 to 99

V(B)(2): The Importance of Deference in Parenting Cases Affecting the Best Interests of the Child: 0:43:31, paragraphs 100 to 104

V(B)(3): The Legal Principles Governing Relocation Applications: 0:45:04, paragraphs 105 to 111

V(B)(3)(a): Determining Relocation Issues at First Instance and by Way of Variation Applications: 0:47:47, paragraphs 112 to 114

V(B)(3)(b): Determining a Child’s Best Interests in Mobility Cases: 0:48:57, paragraphs 115 to 116

V(B)(3)(b)(1): The Application of Gordon to Shared Parenting Arrangements and the So-Called “Great Respect Principle”: 0:49:47, paragraphs 117 to 123

V(B)(3)(b)(2): The Reasons for Relocation: 0:52:35, paragraphs 124 to 130

V(B)(3)(b)(3): The “Maximum Contact Principle” or “Parenting Time Consistent With the Best Interests of the Child”: 0:54:45, paragraphs 131 to 135

V(B)(3)(b)(4): A Parent’s Testimony About Whether They Will Relocate Regardless of the Outcome of the Relocation Application: 0:56:59, paragraphs 136 to 140

V(B)(3)(b)(5): Family Violence as a Relevant Factor: 0:59:19, paragraphs 141 to 147

V(B)(3)(c): Summary of the Framework for Determining Whether Relocation Is in the Best Interests of the Child: 1:01:35, paragraphs 148 to 155

V(B)(4): Did the Trial Judge Err in His Relocation Analysis?: 1:05:47, paragraphs 156 to 157

V(B)(4)(a): The Trial Judge’s Decision Considered the Historical Parenting Roles of the Parties: 1:06:27, paragraphs 158 to 162

V(B)(4)(b): The Trial Judge Considered Parenting Time Consistent With the Best Interests of the Child: 1:08:29, paragraphs 163 to 167

V(B)(4)(c): The Mother’s Need for Emotional Support: 1:10:19, paragraphs 168 to 175

V(B)(4)(d): The Parties’ Acrimonious Relationship: 1:12:53, paragraphs 176 to 188

V(B)(4)(e): The Other Gordon Factors: 1:17:22, paragraph 189

VI: Disposition: 1:17:59, paragraph 190

Dissenting Reasons: Côté J.: 1:18:16

I: Overview: 1:18:21, paragraphs 191 to 194

II: Analysis: 1:20:32, paragraphs 195 to 200

II(A): Palmer Test

II(A)(1): Flexibility in Assessing Due Diligence: 1:22:53, paragraphs 201 to 205

II(A)(2): Flexibility in Assessing Whether the New Evidence Could Have Affected the Result: 1:26:32, paragraphs 206 to 210

II(B): Application to Palmer: 1:28:18, paragraphs 211 to 212

II(B)(1): Due Diligence: 1:28:45, paragraphs 213 to 215

II(B)(2): Whether the New Evidence Could Have Affected the Result: 1:30:12, paragraphs 216 to 222

II(B)(3): Conclusion on Palmer: 1:33:07, paragraph 223

II(C): Proper Use of the New Evidence: 1:33:32, paragraphs 224 to 229

III: Disposition: 1:35:56, paragraphs 230 to 231

Headnote provided by the Supreme Court of Canada:

The mother met the father in northern British Columbia in 2011, and followed him to Kelowna in 2012. Soon after, they got married, bought a house, and had two boys. The home purchase proved to be a project, as significant money was needed to bring it into livable condition. When the relationship ended in 2018, the house remained an ongoing construction project. After the father assaulted the mother during an argument, the mother brought the boys to her parents’ home in Telkwa, some 10 hours away from Kelowna. A parenting arrangement emerged, splitting parenting time alternately between Telkwa and Kelowna, before it was agreed that the children would remain in Kelowna with the father. The parents were to alternate weekly parenting time when the mother returned to Kelowna, which never occurred. Rather, the mother applied to the court to relocate the children to Telkwa. She indicated that she was willing to move to Kelowna if her application was unsuccessful, but the father was unwilling to move to Telkwa under any circumstances.

The trial judge awarded primary residence of the children to the mother and allowed them to relocate to Telkwa. He found that two key issues favoured the move: the more significant issue was the parents’ acrimonious relationship and its implications for the children; and the less significant issue was the father’s financial situation, particularly with respect to his ability to make the Kelowna home habitable. The father appealed and sought to adduce additional evidence about his finances and the renovations he had made to the house since trial. The Court of Appeal characterized this as “new” evidence because it had not existed at the time of trial. The court applied a different test than that set out in Palmer v. The Queen, [1980] 1 S.C.R. 759. In its view, Palmer — and in particular, the due diligence criterion — did not strictly govern the admission of new evidence on appeal. The court then admitted the evidence on the basis that it undermined a primary underpinning of the trial decision and the assumptions that the father might not be able to remain in the Kelowna home had been displaced. As one of trial judge’s two main considerations no longer applied, the court held that relocation could no longer be justified. The court thus concluded that the children’s best interests were best served by staying in Kelowna with both parents.

Held (Côté J. dissenting in part): The appeal should be allowed.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: Regardless of whether the evidence relates to facts that occurred before or after trial, the test laid out in Palmer governs the admission of additional evidence on appeal when it is adduced for the purpose of reviewing the decision below. The Palmer test is sufficiently flexible to respond to any unique concerns that arise with “new” evidence. The Court of Appeal erred by applying a different test and admitting the evidence on appeal. The evidence did not satisfy the Palmer test because it could have been available for trial with the exercise of due diligence. In any event, given the availability of a variation procedure designed to address any material change in circumstances, its admission was not in the interests of justice. Moreover, the trial judge did not err in his relocation analysis, which was consonant with the mobility framework set out in Gordon v. Goertz, [1996] 2 S.C.R. 27, as refined over the past two decades. His factual findings and the weight he ascribed to factors bearing on the children’s best interests warranted deference on appeal. The Court of Appeal was wrong to intervene.

Appellate courts have the discretion to admit additional evidence to supplement the record on appeal. When parties seek to adduce such evidence, the four criteria in Palmer typically apply: (a) the evidence could not, by the exercise of due diligence, have been available for the trial; (b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (c) the evidence is credible in the sense that it is reasonably capable of belief; and (d) the evidence is such that, if believed, it could have affected the result at trial. This framework applies when evidence is adduced on appeal for the purpose of asking the court to review the proceedings in the court below. The test is purposive, fact‑specific, and driven by an overarching concern for the interests of justice. It ensures that the admission of additional evidence on appeal will be rare, such that the matters in issue between the parties narrow rather than expand as a case proceeds up the appellate ladder. The test strikes a balance between two foundational principles: finality and order in the justice system, and reaching a just result in the context of the proceedings.

The first Palmer criterion — that the evidence could not, by the exercise of due diligence, have been available for the trial — focuses on the conduct of the party seeking to adduce the evidence. It requires litigants to take all reasonable steps to present their best case at trial, which ensures finality and order for the parties and the integrity of the judicial system. On an individual level, the principle of finality speaks to the profound unfairness in providing a party the opportunity to make up for deficiencies in his or her case at trial. On a systemic level, it preserves the distinction between the roles of trial and appellate courts: evaluating evidence and making factual findings are the responsibilities of trial judges, while appellate courts are designed to review trial decisions for errors. The admission of additional evidence on appeal blurs this critical distinction. Accordingly, evidence that could, by the exercise of due diligence, have been available for trial should generally not be admitted on appeal. With respect to post‑trial evidence, the reason why the evidence was unavailable for trial may very well have its roots in the parties’ pre‑trial conduct. Courts should accordingly consider whether the party’s conduct could have influenced the timing of the fact they seek to prove.

The last three Palmer criteria require courts to only admit evidence on appeal when it is relevant, credible, and could have affected the result at trial. Unlike the due diligence criterion, which focuses on the conduct of the party, these three criteria focus on the evidence adduced and are conditions precedent to the evidence being adduced. Evidence that falls short of any of them cannotbe admitted on appeal. These criteria reflect the importance of reaching a just result in the context of the proceedings, a principle that is directly linked to the correctness of the trial decision and the truth‑seeking function of the trial process.

In the family law context, evidence that does not satisfy the due diligence criterionshould generally not be admitted on an appeal of a best interests of the child determination. Finality and order are particularly important in such cases. Children should be afforded the comfort of knowing, with some degree of certainty, where they will live and with whom. Certainty in a trial outcome can ensure an end to a period of immense turmoil, strife, and costs; parties should do what they can to promote it. Only in rare instances should an absence of due diligence be superseded by the interests of justice, such as in urgent matters requiring an immediate decision. This could also be the case where admitting the additional evidence does not offend the principle of finality despite the failure to meet the due diligence criterion, such as where the appellate court has already identified a material error in the trial judgment below and further evidence may help determine an appropriate order. Such exceptional circumstances do not dispense with the other Palmer criteria. Similarly, the best interests of the child cannot be routinely leveraged to ignore the due diligence criterion and admit additional evidence on appeal.

In family law cases, the admission of post‑trial evidence on appeal may be unnecessary because legislative variation schemes permit a judge of first instance to vary a parenting order where a change of circumstances justifies a review of a child’s best interests. The interest in reaching a just result can therefore be fostered through means other than an appeal and admission of post‑trial evidence on appeal can therefore unnecessarily undermine finality and order in family law decisions. Courts must be wary of litigants using the Palmer framework to circumvent legislative schemes that provide specific procedures for review. An appeal is not an opportunity to avoid the evidentiary burden in a variation proceeding nor to seek a fresh determination after remedying gaps in a trial strategy with the assistance of the trial judge’s reasons. Consequently, in an appeal of a parenting order, courts should consider whether a variation application would be more appropriate in the circumstances. Where an application for additional evidence amounts to what is in substance a disguised application to vary, a court may refuse to admit additional evidence without considering the Palmer criteria.

The Court’s decision in Gordon sets out a two‑stage inquiry for determining whether to vary a parenting order and permit a custodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determine what order reflects the child’s best interests in the new circumstances. Although Gordon concerned a variation order, courts have also applied the framework when determining a parenting arrangement at first instance, with appropriate modifications. As the first stage of the Gordon inquiry will likely not raise a contentious issue in relocation cases, determining the child’s best interests will often constitute the crucial question.

For the past 25 years, case law has refined the Gordon framework. The 2019 amendments to the Divorce Act largely codified these refinements. Where the Divorce Actdeparts from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement (s. 16.93). And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best interests of the child analysis (s. 16.92(1)(a)).

The new Divorce Actamendments also respond to issues identified in the case law over the past few decades. The language in s. 16(6) now expressly recognizes that the so‑called maximum contact principle is only significant to the extent that it is in the child’s best interests. This principle is better referred to as the parenting time factor, and must not be used to detract from the child‑centric nature of the inquiry. Section 16.92(2) provides that trial judges shall not consider a parent’s testimony that they would move with or without the child, and ss. 16(3)(j) and 16(4) instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. This consideration is especially important in mobility cases.

In light of these refinements, the common law relocation framework can be restated as follows: courts must determine whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well‑being. This inquiry is highly fact‑specific and discretionary, and the scope of appellate review is narrow. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. How the outcome of an application would affect either parties’ relocation plans should not be considered.

In the instant case, there was a significant risk that the high‑conflict nature of the parents’ relationship would impact the children if they stayed in Kelowna, and the mother needed her family’s support to care for the children, which was only available in Telkwa. Moreover, the mother was more willing to facilitate a positive relationship between the children and the father than the converse, and there were findings of family violence. Accordingly, there was no reason to set aside the trial judge’s decision that relocation was in the children’s best interests.

Per Côté J. (dissenting in part): The appeal should be allowed in part. The new evidence should be admitted, and the appeal should be remanded to the trial court for reconsideration of the children’s best interests in light of the new evidence.

There is agreement with the majority that the test laid oud in Palmer governs, as it applies to both fresh and new evidence, yet there is disagreement with the majority’s application of Palmer to the facts of the appeal. The Court of Appeal’s ultimate conclusion that the evidence is admissible should be upheld, but its treatment of Palmer and its decision to reassess the best interests of the children should be rejected. The Gordon framework is not properly before the Court, as the parties did not raise the issue. It should be left for another day.

The Palmer test must be applied flexibly in all cases involving the welfare of children. A child’s welfare is ongoing and fluid, and an accurate assessment of their current situation is of crucial importance on appeal. Although the rules for admitting new evidence are not designed to permit litigants to retry their cases, the best interests of a child may provide a compelling reason to admit evidence on appeal. An application to vary may in some circumstances be the appropriate procedure, but it remains adversarial in nature; as such, it would also cause strains on the parties’ resources and delays.

Narrowing Palmer’s flexibility to exceptional cases is unduly rigid and undermines the specificity needed in cases involving children’s welfare. Indeed, it would often deny judges the full context they need in order to make a sound determination of the best interests of the child in a particular case. Additionally, a rigid view of the Palmer criterion of due diligence focuses inordinately and narrowly on the litigant’s conduct. The mere fact that new evidence could potentially have been obtained for the trial should not, on its own, preclude an appellate court from reviewing information that bears directly upon the welfare of a child. To be sure, a failure to meet the due diligence criterion is not always fatal, as it is not a condition precedent to admission. When this occurs, it must be determined whether the strength of the other Palmer criteria is such that failure to satisfy the due diligence requirement is overborne.

Appellate courts are not entitled to overturn trial court decisions simply because they would have made a different decision or balanced the factors differently. While the Court of Appeal was correct to admit the new evidence, it should not have used it as a pretext to reweigh the trial judge’s findings regarding the relationship between the parties. Those findings were not affected by the new evidence and were entitled to appellate deference.

In this case, the new evidence could have affected the result at trial, as it bore on a critical aspect of the trial judge’s reasoning. Finality, although important, should not tie the hands of a reviewing court so as to prevent it from crafting a remedy that would advance the best interests of the child. The matter should be remitted to the trial judge because of his extensive knowledge of the family and the children. Any additional delay and expense resulting from the reconsideration of this matter is justified by the need to assess the best interests of the children in light of their father’s current circumstances.

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Timestamps:

A: Introduction: 00:00, paragraphs 1 to 2

B: History of the Proceedings: 01:27, paragraphs 3 to 4

C: Background: 01:59, paragraphs 5 to 10

D: The Issue: 04:41, paragraphs 11 to 12

E: The Positions of the Parties

E(1): Professor Alford: 05:43, paragraphs 13 to 17

E(2): Canada (Attorney General): 09:04, paragraphs 18 to 22

E(3): Canadian Civil Liberties Association: 11:29, paragraphs 23 to 24

F: Discussion: 12:17, paragraphs 25 to 47

G: Conclusion: 24:38, paragraphs 48 to 49

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Timestamps:

The judgement of the Court was delivered by Kasirer J.

I: Overview: 0:00:09, paragraphs 1 to 8

II: Background

II(A): David Sullivan: 0:04:31, paragraphs 9 to 11

II(B): Thomas Chan: 0:06:09, paragraphs 12 to 14

III: Proceedings Below

III(A): David Sullivan

III(A)(1): Ontario Superior Court of Justice, [2016] O.J. No. 6847 (QL), (Salmers J.): 0:07:21, paragraphs 15 to 16

III(B): Thomas Chan

III(B)(1): Constitutional Ruling, 2018 ONSC 3849 (Boswell J.): 0:08:44, paragraphs 17 to 19

III(B)(2): Judgment on the Merits, 2018 ONSC 7158 (Boswell J.): 0:10:39, paragraphs 20 to 22

III(B)(3): Application to Re-open Constitutional Challenge, 2019 ONSC 783 (Boswell J.): 0:12:30, paragraphs 23 to 25

III(C): Court of Appeal for Ontario, 2020 ONCA 333 (Paciocco J.A., Watt J.A. concurring; Lauwers J.A. concurring in the result): 0:14:57, paragraphs 26 to 31

IV: Issues: 0:18:14, paragraphs 32 to 35

V: Analysis

V(A): Section 52(1) Declarations of Unconstitutionality and Horizontal Stare Decisis: 0:19:19, paragraphs 35 to 44

V(A)(1): Section 52(1) Declarations of Unconstitutionality Reflect the Exercise of Judicial Power to Decide Questions of Law: 0:25:14, paragraphs 45 to 49

V(A)(2): Stare Decisis Governs Declarations of Unconstitutionality: 0:29:42, paragraphs 50 to 59

V(A)(3): The Role of Federalism and the Rule of Law: 0:39:06, paragraphs 60 to 72

V(A)(4): Proper Approach to Horizontal Stare Decisis: 0:50:08, paragraphs 73 to 87

V(B): Is There Jurisdiction to Hear Mr. Chan’s Appeal?: 0:58:02, paragraphs 88 to 92

V(C): Disposition of Appeals

V(C)(1): Mr. Chan: 1:01:37, paragraphs 93 to 97

V(C)(2): Mr. Sullivan: 1:04:30, paragraph 98

VI: Conclusion: 1:05:13, paragraph 99

Headnote provided by the Supreme Court of Canada:

After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, S attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, C fell into an impaired stated after he voluntarily ingested magic mushrooms containing a drug called psilocybin. He attacked his father with a knife and killed him, and seriously injured his father’s partner. C was tried for manslaughter and aggravated assault. Both S and C argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. C also argued that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible.

In the case of S, the trial judge accepted that S was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. S was convicted of the two assault charges. The trial judge in C’s case dismissed C’s constitutional challenge to s. 33.1, during which C had argued that previous decisions of the same court that declared s. 33.1 unconstitutional were binding on the trial judge. C’s brain trauma was held to be a mental disorder but not the cause of C’s incapacity, which was the result of the voluntary ingestion of magic mushrooms. C was convicted of manslaughter and aggravated assault.

The Court of Appeal heard appeals by S and C together and held that s. 33.1 violates ss. 7 and 11(d) of the Charterand is not saved by s. 1. S and C were therefore entitled to raise the defence of automatism. The Court of Appeal also addressed the issue of whether the trial judge in C’s case was bound by precedent of a court of coordinate jurisdiction in the province to accept the unconstitutionality of s. 33.1. It held that the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality. The trial judge was correct to decide that he was not bound by previous decisions and entitled to consider the issue afresh. In the result, S’s convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for C because no finding of fact had been made in respect of non-mental disorder automatism. The Crown appeals to the Court from the Court of Appeal’s decision in respect of both S and C, and C applies for leave to cross‑appeal the order of a new trial, seeking an acquittal or, in the alternative, a stay of proceedings.

Held: The appeals should be dismissed. C’s application for leave to cross‑appeal should be quashed for want of jurisdiction.

In the companion appeal of R. v. Brown, 2022 SCC 18, the Court concludes that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is applicable to the Crown’s appeals in the present cases. In the result, given that s. 33.1 is of no force or effect, S is entitled to acquittals. He established that he was intoxicated to the point of automatism and the trial judge found that he was acting involuntarily. As for C, the Court of Appeal’s order for a new trial should be upheld. C may avail himself of the defence of non‑mental disorder automatism at a new trial, should it be applicable on the facts.

The ordinary rules of horizontal stare decisis and judicial comity apply to declarations of unconstitutionality issued by superior courts within the same province. A decision may not be binding if it is distinguishable on its facts or the court had no practical way of knowing it existed. If it is binding, a trial court may only depart if one or more of the exceptions set out in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), apply.

Accordingly, a trial judge is not strictly bound by a prior declaration by a court of coordinate jurisdiction by virtue of s. 52(1) of the Constitution Act, 1982. A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining a question of law. Determining whether an impugned law is inconsistent with the provisions of the Constitution and, if so, whether and to what extent the law is of no force or effect is no different than other questions of law decided outside the constitutional context. Judges cannot in a literal sense strike down legislation when they review the consistency of the law with the Constitution under s. 52(1). A declaration of unconstitutionality simply refutes the presumption of constitutionality; it does not alter the terms of the statute. Questions of law are governed by the normal rules and conventions that constrain courts in the performance of their judicial tasks, including applying the ordinary principles of stare decisis. A judicial declaration made under s. 52(1) by a superior court is therefore binding on other courts within the confines of the law relating to precedent.

The principle of constitutional supremacy cannot dominate the analysis of s. 52(1) to the exclusion of other constitutional principles. The legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, the rule of law, and federalism. Pursuant to s. 96 of the Constitution Act, 1867, superior courts operating within a province only have powers within the province. Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country. Horizontal stare decisis applies to courts of coordinate jurisdiction within a province and a constitutional ruling will bind lower courts through vertical stare decisis. Stare decisis is the appropriate framework to apply to litigation of constitutional issues, because it balances stability and predictability against correctness and the orderly development of the law. The Crown may consider an appeal when faced with conflicting trial decisions relating to a law on which the prosecution continues to rely, but is not bound to appeal declarations of unconstitutionality in criminal matters. However desirable uniform treatment of the substantive criminal lawmight be within or even across provinces, a decision to appeal remains within the discretion of the relevant attorney general, to be decided in keeping with its authority to pursue the public interest and the constitutional and practical constraints relating to its office.

Varying standards have been invoked to define when departure from prior precedent is appropriate, for example if it is plainly wrong, when there is good reason for doing so or in extraordinary circumstances. These qualitative tags are susceptible of extending to almost any circumstance and do not provide precise guidance. These terms should no longer be used. Judicial comity as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances: the rationale of the earlier decision has been undermined by subsequent appellate decisions; some binding authority in case law or some relevant statute was not considered; or the earlier decision was not fully considered, for example if it was taken in exigent circumstances. Where a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless one or more of these three criteria are met. These criteria do not detract from the narrow circumstances in which a lower court may depart from binding vertical precedent.

An application of the doctrine of horizontal stare decisis to C’s case illustrates how these criteria should work in practice. R. v. Dunn (1999), 28 C.R. (5th) 295, did not engage with an earlier Ontario decision that upheld the constitutionality of s. 33.1 and Dunn did not apply thecriteria to determine whether it was permissible to depart from that precedent; therefore it was a decision per incuriam and did not need to be followed. The earlier decision considered the appropriate statutes and authorities in reaching the conclusion that s. 33.1 infringed ss. 7 and 11(d) of the Charter but was upheld under s. 1 and there is no indication that it was rendered in exigent circumstances. Therefore, that decision should have been followed by the trial judge in the constitutional ruling in C’s case. On appeal, however, the Court of Appeal was not bound to follow any first instance superior court decision.

There is no statutory route for C to appeal the Court of Appeal’s order of a new trial. Section 695 of theCriminal Codedoes not provide the Court with the jurisdiction to hear a cross-appeal by C. Sections 691 and 692 of the Criminal Code set out the jurisdiction of the Court to hear criminal appeals brought by criminal accused and represent the whole of an accused’s express statutory right to appeal when their conviction has been affirmed or their acquittal set aside by the Court of Appeal. In cases like C’s, where an accused, having been convicted of an indictable offence at trial, is granted a new trial, s. 691 does not provide a route of appeal to the Court. As for a stay of proceedings, it may only be granted in the clearest of cases, where prejudice to an accused’s rights or to the judicial system is irreparable and cannot be remedied. The record before the Court is insufficient to conclude that C’s right to a fair trial is prejudiced.

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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see below “Timestamps”.

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Timestamps:

I: Overview: 0:00:09, paragraphs 1 to 14

II: Background: 0:11:12, paragraphs 15 to 21

III: Proceedings Below

III(A): Alberta Court of Queen’s Bench

III(A)(1): The Constitutional Ruling, 2019 ABQB 770 (deWit J.): 0:14:35, paragraphs 22 to 25

III(A)(2): Reasons for Judgment on the Merits, 2020 ABQB 166 (Hollins J.): 0:16:40, paragraphs 26 to 28

III(B): Court of Appeal of Alberta, 2021 ABCA 273 (Slatter, Khullar and Hughes JJ.A.): 0:18:13, paragraphs 29 to 39

IV: Issue: 0:24:08, paragraphs 40 to 41

V: Analysis

V(A): Intoxication and Criminal Liability: 0:25:20, paragraphs 42 to 51

V(A)(1): Daviault: 0:31:30, paragraphs 52 to 57

V(A)(2): Bill C-72: 0:35:09, paragraphs 58 to 63

V(B): Section 33.1 Infringes Sections 7 and 11(d)

V(B)(1): Principal Arguments: 0:39:44, paragraphs 64 to 66

V(B)(2): Threshold Issue: Internal Balancing Under Section 7: 0:42:14, paragraphs 67 to 72

V(B)(3): Interpretation of Section 33.1: 0:47:55, paragraphs 73 to 88

V(B)(4): Breaches of Sections 7 and 11(d) of the Charter: 1:00:39, paragraph 89

V(B)(4)(a): Mens Rea as Required by Section 7: 1:01:09, paragraphs 90 to 95

V(B)(4)(b): Voluntariness as Required by Section 7: 1:05:22, paragraphs 96 to 98

V(B)(4)(c): Substitution as Prohibited by Section 11(d): 1:07:53, paragraphs 99 to 105

V(B)(4)(d): Contemporaneity: 1:12:21, paragraphs 106 to 109

V(C): Justification Analysis: 1:13:52, paragraphs 110 to 114

V(C)(1): Pressing and Substantial Purpose: 1:17:42, paragraphs 115 to 127

V(C)(2): Proportionality

V(C)(2)(a): Rational Connection: 1:27:53, paragraphs 128 to 134

V(C)(2)(b): Minimal Impairment: 1:31:18, paragraphs 135 to 142

V(C)(2)(c): Proportionality Between Effects and ObjectVes: 1:37:11, paragraphs 143 to 145

V(C)(2)(c)(i): Salutary Effects: 1:38:39, paragraphs 146 to 151

V(C)(2)(c)(ii): Deleterious Effects: 1:45:!6, paragraphs 152 to 163

V(C)(2)(c)(iii): Weighing the Salutary and Deleterious Effects: 1:56:09, paragraphs 164 to 166

VI: Conclusion: 1:59:24, paragraphs 167 to 168

Headnote provided by the Supreme Court of Canada:

At a house party, B consumed alcohol and magic mushrooms. Magic mushrooms contain psilocybin, an illegal drug that can bring about hallucinations. B lost his grip on reality and left the house. B was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions. He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He then broke into another residence and the occupants called the police. B was charged with break and enter and aggravated assault, and with break and enter and mischief to property over $5,000.

At trial, B argued that he was not guilty of the offences by reason of automatism caused by the consumption of psilocybin. Expert evidence adduced at trial confirmed that B had no voluntary control over his conduct at the time. The Crown invoked s. 33.1 of the Criminal Code as a means of precluding B from relying on self‑induced intoxication akin to automatism as a defence to the charge of aggravated assault. Parliament added s. 33.1 to the Criminal Code in response to R. v. Daviault, [1994] 3 S.C.R. 63. The Court in Daviault confirmed the common law rule that intoxication is not a defence to crimes of general intent, but a majority recognized that the Charter mandated an exception where intoxication is so extreme that an accused falls into a condition akin to automatism and is incapable of voluntarily committing a guilty act or of having a guilty mind. Section 33.1 was enacted to address the constitutional failings identified by the majority in Daviault in a manner that would properly reflect the blameworthiness of the extremely self-intoxicated accused identified by the dissent. Section 33.1 blocks the defence of automatism for general intent crimes designated in s. 33.1(3), including aggravated assault and sexual assault.

B challenged the constitutionality of s. 33.1. The voir dire judge concluded that s. 33.1 violates the principles of fundamental justice and the presumption of innocence guaranteed by ss. 7 and 11(d) of the Charterand that the violations are not justified pursuant to s. 1 of the Charter. He declared s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. As a result, B was entitled to raise the defence of extreme intoxication akin to automatism at trial. The trial judge found that the defence was an answer to both charges and entered acquittals. The Court of Appeal reversed the declaration that s. 33.1 was of no force or effect, set aside the acquittal on the count of break and enter and aggravated assault, and entered a conviction for that offence. The acquittal on the mischief charge was unaffected by s. 33.1 and not appealed.

Held: The appeal should be allowed. Section 33.1 of the Criminal Codeshould be declared unconstitutional and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. The acquittal on the count of unlawful break and enter of a dwelling house and committing aggravated assault therein should be restored.

This is not a drunkenness case. B consumed a drug which, taken in combination with alcohol, provoked psychotic, delusional and involuntary conduct. Criminal liability for violent conduct produced by alcohol alone, short of the psychotic state akin to automatism experienced by B, is not in issue. The outcome of the declaration of unconstitutionality with respect to s. 33.1 has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent, such as assault or sexual assault. While s. 33.1 is unconstitutional, there may well have been other paths for Parliament to achieve its legitimate aims connected to combatting extreme intoxicated violence. The sense that an accused who acts violently in a state of extreme self‑induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law. Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose. And it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

Section 33.1(1) of the Criminal Code eliminates the defence of self‑induced intoxication akin to automatism applied to the violent offences identified in s. 33.1(3) where the accused departs markedly from the standard of care described in s. 33.1(2). Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence pointed to in s. 33.1(3). Section 33.1 applies when three conditions are met: the accused was intoxicated at the material time, the intoxication was self‑induced, and the accused departed markedly from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person. When these three things are proved, it is not a defence that the accused lacked the general intent or the voluntariness required to commit the offence named in s. 33.1(3). The requirements of s. 33.1 are not, together or separately, a measure of fault; they are conditions of liability, as the use of the word “while” in s. 33.1(2) confirms. The marked departure described in s. 33.1(2) depends on proof of two facts: that the person was in a state of self‑induced intoxication that rendered them unaware of, or incapable of controlling, their behaviour, and that the violent act occurred while they were in that state. These facts are conditions of liability and not measures of fault because neither of them import a criminal negligence standard. Thus s. 33.1 deems criminal fault for the violent offence to be present based on the accused’s choice to become intoxicated. What Parliament sought was to impose liability for the charged offence, and not the act of self‑induced intoxication itself.

Therights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under s. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under s. 7. Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under s. 1.

Section 33.1 breaches s. 7 of the Charterby allowing a conviction without proof of mens rea or proof of voluntariness. It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault. Section 33.1 requires an intention to become intoxicated but intention to become intoxicated to any degree suffices — it matters little that a person did not foresee their loss of awareness or control, and nothing is said about the licit or illicit nature of the intoxicant or its known properties. For this reason, while s. 33.1 applies to those who recklessly invite their loss of control, it also captures unexpected involuntariness, for example an unexpected reaction to a prescribed pain medication. It also imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm. Furthermore, instead of asking whether a reasonable person would have foreseen the risk and taken steps to avoid it and whether the failure to do so amounted to a marked departure from the standard of care expected in the circumstances, s. 33.1 deems a marked departure to be present whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. Since s. 33.1 allows the court to convict an accused without proof of the constitutionally required mens rea, it violates s. 7 of the Charter.Section 33.1 also directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and the law recognizes that voluntariness for the conviction of a crime is a principle of fundamental justice.

Section 33.1 also breaches the right to be presumed innocent until proven guilty guaranteed by s. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond a reasonable doubt. A direction from Parliament that proof of one fact is presumed to satisfy proof of one of the essential elements of an offence can only comply with s. 11(d) if, in all cases, proof of the substituted fact leads inexorably to the conclusion that the essential element it replaces exists. Otherwise, the substitution may result in the accused being convicted, based on proof of the substituted fact, despite the existence of a reasonable doubt as to the essential element of the offence that it replaces. Section 33.1 improperly substitutes proof of self‑induced intoxication for proof of the essential elements of an offence. The fault and voluntariness of intoxication are substituted for the fault and voluntariness of the violent offence. This amounts to a constitutionally improper substitution. It cannot be said that in all cases under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence.

Parliament had before it a record that highlighted the strong correlation between alcohol and drug use and violent offences, in particular against women, and brought to the fore of Parliament’s attention the equality, dignity, and security rights of all victims of intoxicated violence. Parliament’s protective public goals cannot be understated: these interests bear meaningful attention at both principal steps in the s. 1 analysis. But the Crown must show on a balance of probabilities that the limits of ss. 7 and 11(d) brought by s. 33.1 are reasonable and demonstrably justified under s. 1 of the Charter. Given the patent risk that s. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, s. 33.1 fails at the proportionality step and thus cannot be saved under s. 1.

With respect to pressing and substantial purpose, the purpose of a provision must be properly identified with a view to justifying the infringement of the Charter, otherwise the exercise is not helpful for the balancing mandated by s. 1. In enacting s. 33.1, Parliament blocked the defence of automatism for the extremely intoxicated offender for two legitimate purposes: to protect the victims of extremely intoxicated violence, with particular attention to women and children whose equal place in society is compromised by sexual assault and other violent crimes of general intent in such circumstances; and to call offenders to answer for their choice to voluntarily ingest intoxicants where that choice creates a risk of violent crime. The protective purpose is sufficiently pressing and substantial to warrant limiting Charter rights — the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom. As for the accountability objective, it rests on a philosophical idea that one should not be able to create the conditions of one’s own criminal defence to block liability for the crime committed. An individual is responsible for their involuntary state because that person’s choice to ingest intoxicants and become extremely intoxicated ultimately creates a risk of violence. Stated in this manner, accountability in this context is pressing and substantial and fits appropriately within the Oakes analysis.

The deterrent and denunciating effects of s. 33.1 provide a rational connection to Parliament’s protective objective. While it is true that s. 33.1 applies to an accused who could not have foreseen the risk of a loss of control or of bodily harm, it also extends to situations in which there was a foreseeable risk of a loss of control and harm. Thus, an individual who consumes an intoxicant with psychosis‑inducing effects, including those who know they lost control of their conduct while in a drug-induced psychosis in the past, will be caught by s. 33.1. It is reasonable that Parliament would expect the provision to hold some modest deterrent effect for such individuals. This deterrent effect dissuades those contemplating this kind of intoxication and, as such, s. 33.1 is rationally connected to its protective purpose. In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that a person foreclosed from advancing a defence that could result in an acquittal is held accountable.

Section 33.1 is, however, not minimally impairing of an accused’s ss. 7 and 11(d) rights. There are less harmful means of achieving Parliament’s objectives in a real and substantial manner. Options have been advanced that would trench less on the rights of the accused, including a stand-alone offence of criminal intoxication. Alternatively, a path to liability for the underlying violent offence might be based on a criminal negligence standard that would allow the trier of fact to consider whether a loss of control and bodily harm were both reasonably foreseeable at the time of intoxication. This latter option could allow an accused to be convicted for the underlying violent act and not simply negligent or dangerous intoxication while achieving the minimum objective fault standard required by the Constitution.

Section 33.1 also fails on an assessment of the relative benefits and negative effects of the law under the Oakes test. At the final stage under s. 1, the question is whether there is proportionality between the overall effects of the Charter‑infringing measure and the legislative objectives. This invites the broadest assessment of the benefits of s. 33.1 to society, weighed against the cost of the limitations to ss. 7 and 11(d) of the Charter. With respect to its salutary effects, s. 33.1 gives expression to the close and harmful association between extreme self-induced intoxication and violence and affirms society’s commitment to the equality and security rights of victims vulnerable to intoxicated crime. It responds meaningfully to inequality by recognizing that women and children deserve the full protection of the law and by condemning intoxicated gendered and family violence. It includes in its reach the irresponsible use and mixing of intoxicants that could lead to automatism and violence which discourages such behaviour and raises awareness about the link between extreme intoxication and violence. It contributes to public confidence in the criminal justice system, although this benefit must be balanced against recognizing society’s interests in a system of law governed by the principles of fundamental justice. As well, it fosters personal responsibility in respect of voluntary intoxication, which Parliament saw as one of the root sources of violent crime.

However, s. 33.1’s deleterious effects are serious and troubling. Its fundamental flaw is the risk of wrongful convictions it presents. It contravenes virtually all the criminal law principles that the law relies upon to protect the morally innocent. It enables conviction where the accused acted involuntarily, where the accused did not possess the minimum level of fault required, and where the Crown has not proven beyond a reasonable doubt the essential elements of the offence for which an accused is charged. Because s. 33.1 does not build in a criterion of objective foreseeability, it is impossible to say who, among those who voluntarily ingest intoxicants, has the degree of blameworthiness that would justify the stigma and punishment associated with the underlying offence with which they are charged. Where the intoxicant is licit, or where no reasonable person would anticipate the risk of automatism, whatever blameworthiness that comes from voluntary intoxication is relatively low and likely disproportionate to the punishment the individual would face if convicted for an offence committed in a state akin to automatism. It cannot be concluded that the morally innocent will not be punished. This is an extremely serious deleterious effect. Additionally, s. 33.1 disproportionately punishes for unintentional harm, contrary to the principle that punishment must be proportionate to the gravity of the offence.

The Crown has not discharged its burden of showing that the benefits suggested by the evidence are fairly realized by s. 33.1. There are socially and constitutionally acceptable alternatives to the Daviault exception that achieve the legitimate objectives of the law more fairly than in s. 33.1. In the absence of s. 33.1, the benefits tied to accountability and protection will continue to be met through the application of common law rules which prevent the defence of intoxication including to general intent crimes of violence. Parliament can further advance these goals with respect to self‑induced extreme intoxication akin to automatism through other means. The weight to be accorded to the principles of fundamental justice and the presumption of innocence cannot be ignored. Section 33.1 trenches on fundamental principles at the core of Canada’s criminal law system, creates a liability regime that disregards principles meant to protect the innocent, and communicates the message that securing a conviction is more important than respecting the basic principles of justice. Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.

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The text of the full decision can be found here. For the headnote (summary) provided by the Supreme Court of Canada, see section below “Timestamps”.

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Timestamps:

Majority Reasons: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. delivered by the Chief Justice

Introduction: 0:00, paragraphs 1 to 4

I: Background: 3:15, paragraphs 5 to 11

II: Decisions Below

II(A): Court of Québec, 2019 QCCQ 1236 (Judge Roy): 5:45, paragraphs 12 to 15

II(B): Quebec Court of Appeal, 2020 QCCA 666 (Levesque, Hogue and Sansfaçon JJ.A.): 7:40, paragraphs 16 to 22

III: Issues: 11:19, paragraph 21

IV: Analysis

IV(A): Section 11(b) of the Charter and the Temporal Scope of the Right to Be Tried Within a Reasonable Time

IV(A)(1): Protection Conferred by Having the Status of a Person Charged With an Offence: 11:43, paragraphs 22 to 24

IV(A)(2): Temporal Scope of Jordan Ceilings: 14:05, paragraphs 25 to 29

IV(B): After a New Trial Is Ordered, Can an Accused File a Section 11(b) Motion for a Stay of Proceedings Based on Delay in the Accused’s First Trial?

IV(B)(1): Jordan and the Duty of an Accused to Raise an Infringement of Their Right to Be Tried Within a Reasonable Time in a Timely Manner: 17:47, paragraphs 30 to 36

IV(B)(2): A Section 11(b) Application Can Be Brought on Appeal Only Exceptionally: 23:01, paragraphs 37 to 42

IV(B)(3): An Accused’s Silence or Inaction Does Not in Itself Amount to a Waiver of Delay: 26: 22: paragraphs 43 to 52

IV(B)(4): An Accused May Not Raise First‑Trial Delay Once a New Trial Is Ordered: 34:00, paragraphs 53 to 60

IV(C): Do the Presumptive Ceilings Established in Jordan Apply to Retrial Delay?

IV(C)(1): The Presumptive Ceilings Established in Jordan Apply to the Delay in a New Trial: 40:43, paragraph 61

IV(C)(2): The Presumptive Ceilings Should Not Be Changed: 42:10, paragraphs 62 to 68

IV(C)(3): Factors to Be Considered in Determining the Reasonableness of Retrial Delay Where It Is Below the Applicable Presumptive Ceiling: 45:59, paragraphs 69 to 73

V: Application to This Appeal: 50:23, paragraphs 74 to 79

VI: Disposition: 54:24, paragraph 80

Dissenting Reasons: Côté J.

I: Overview: 54:39, paragraphs 81 to 84

II: Analysis: 56:42, paragraphs 85 to 102

III: Conclusion: 1:09:41, paragraph 103

Headnote provided by the Supreme Court of Canada:

In February 2011, the accused was charged with seven counts involving sexual offences against his daughter. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, following a preliminary inquiry. Argument was completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, the Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, the accused was acquitted on all counts. On June 13, 2018, the Quebec Court of Appeal set aside the acquittal and ordered a new trial. Before the retrial began, the accused filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The motion concerned the delays in the first trial and the retrial.

In assessing whether the s. 11(b) right had been infringed, the trial judge combined the delays for the first trial and the retrial. She held that the accused’s right to be tried within a reasonable time had been infringed, and she entered a stay of proceedings. The Court of Appeal dismissed the Crown’s appeal, finding that it had not rebutted the presumption that the total delay between the charges and the end of the argument at the first trial was unreasonable.

Held (Côté J. dissenting): The appeal should be allowed, the stay of proceedings set aside and the case remanded to another judge of the Court of Québec for the continuation of the trial.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. The ceilings set in Jordan apply to retrial delay, but when an accused brings a motion for a stay of proceedings for unreasonable delay after an appeal court has ordered a new trial, only the delay in that trial will be counted in calculating delay.

Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows that an accused must raise the unreasonableness of trial delay in a timely manner. It is generally recognized that an accused who raises the unreasonableness of delay after trial, and particularly after conviction, is not acting in a timely manner. It is therefore only exceptionally that an infringement of the right to be tried within a reasonable time can be raised by an accused for the first time on appeal.

However, waiver of delay cannot be inferred solely from an accused’s silence or failure to act. For a court to find that delay has been waived, an accused must take some direct action from which a consent to delay can be properly inferred. A court cannot regard an accused’s long silence or lengthy inaction as amounting to a clear and unequivocal waiver or an acceptance of the delay associated with a past trial. Any person charged with an offence has the right to be tried within a reasonable time without having to explicitly state their wish to be protected by this right. Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. Waiver is established on the basis of the accused’s conduct, having regard to the circumstances of each case.

Since the adoption of the Jordan framework, which requires an accused to take appropriate action in a timely manner, an accused cannot bring a s. 11(b) motion during a retrial based on delay in their first trial. Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources. Bringing a motion in a retrial for a stay of proceedings based on first‑trial delay is contrary to the parties’ duty to take proactive measures and interferes with the proper administration of justice. While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist, this does not entitle the accused to do nothing when they believe that their s. 11(b) right is not being or will not be respected. Section 11(b) does not allow an accused to benefit unduly from the lengthening of delay. This means that an accused may not raise first‑trial delay once a new trial is ordered. The computation of delay restarts at zero when such an order is made. However, a court may be able to consider first‑trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances.

After a new trial is ordered, the accused regains the status of a person charged with an offence. Delay following such an order is trial delay and therefore falls within Jordan, so the presumptive ceilings established in Jordan apply to the delay in the new trial. It is not appropriate to adopt different presumptive ceilings for retrials. It has not been shown that there is a real problem, let alone one that could warrant the imposition of a new constitutional standard. The presumptive ceilings established in Jordan provide a uniform general framework for assessing the reasonableness of the delay between the charge and the end of trial, irrespective of the varying degrees of prejudice experienced by different groups and individuals. The creation of a new ceiling would be incompatible with the uniform‑ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried and to be used by courts to determine whether retrial delay is reasonable, even where it is below the presumptive ceiling. Delay is not reasonable simply because it is within the applicable ceiling; it is only presumptively reasonable.

Two factors can be considered in analyzing the reasonableness of retrial delay in order to take account of the specific nature of this context: retrials must be prioritized when scheduling hearings, and retrials are, as a general rule, to be conducted in less time than first trials. These factors must be assessed contextually, as required by Jordan. In this regard, first‑trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first‑trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the fact that this contextual element is considered does not allow an accused to raise first‑trial delay indirectly; it is the retrial delay that remains the focus of the analysis.

In this case, the accused did not act in a timely manner. It was not until a few months before his retrial was to be held that he brought his s. 11(b) motion. As a result, the delay in his first trial cannot be considered in calculating the total delay. Only the delay since the order for a new trial is counted. The total delay between the order for a new trial and the actual or anticipated end of that trial, 10 months and 5 days, is well below the 30‑month presumptive ceiling. None of the factors associated with this specific context supports a finding that the accused’s right to be tried within a reasonable time was infringed: the anticipated retrial delay is very short and the case was prioritized. The delay is reasonable and there are no grounds for a stay of proceedings.

Per Côté J. (dissenting): The appeal should be dismissed and the stay of proceedings upheld. There is agreement with the main principles in the majority’s analysis. The approach adopted reflects the culture shift required by Jordan and provides a pragmatic solution. However, the specific context of the transition from the subjective Morin framework to the prospective Jordan framework created an exceptional circumstance. In this context, even a delay of 10 months and 5 days in a non‑complex case like this one is sufficiently long to justify taking the first‑trial delay into account. Because the issue of reasonableness of delay arises in a context where the accused’s first trial had been completed and judgment had been reserved by the time the Court rendered its decision in Jordan, this is one of the exceptional cases in which a stay of proceedings must be entered even though the accused did not raise the infringement of s. 11(b) until after a retrial was ordered.

The accused cannot be faulted for not acting proactively and filing a motion for a stay of proceedings before the end of his first trial or in the Court of Appeal. He had a right to have the trial completed and to obtain an acquittal. Fighting to secure an acquittal is a right, not a strategy. Nor can the accused be faulted for not acting in keeping with a culture shift that had not occurred at the time of the events. Between the charges in February 2011 and the filing of the motion for a stay of proceedings in December 2018, only a period of 39 days from the first trial can be attributed to him, in nearly 8 years of proceedings. In reality, the Crown failed to prioritize the accused’s case and the system failed to try him in a diligent and reasonable manner. The presumption that the delay is reasonable is rebutted.

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The text of the full decision can be found here. For the headnote (summary) provided by the Supreme Court of Canada, see section below “Timestamps”.

Timestamps:

I: Introduction: 00:17, paragraphs 1 to 4

II: Background: 02:26, paragraphs 5 to 18

III: Statutory Provisions: 16:16, paragraphs 19 to 21

IV: Judicial History:

IV(A): British Columbia Supreme Court, 2012 BCSC 886: 20:28, paragraphs 22 to 33

IV(B): British Columbia Court of Appeal, 2013 BCCA 435: 29:40, paragraphs 34 to 39

V: Issues on Appeal: 32:48, paragraphs 40 to 41

VI: Was the Trial Judge Bound by Rodriguez?: 34:06, paragraphs 42 to 48

VII: Does the Prohibition Interfere With the “Core” of the Provincial Jurisdiction Over Health?: 37:57, paragraphs 49 to 53

VIII: Section 7: 41:33, paragraphs 54 to 56

VIII(A): Does the Law Infringe the Right to Life, Liberty and Security of the Person?

VIII(A)(1): Life: 42:35, paragraphs 57 to 63

VIII(A)(2): Liberty and Security of the Person: 46:14, paragraphs 64 to 69

VIII(A)(3): Summary on Section 7: Life, Liberty and Security of the Person: 51:32, paragraph 70

VIII(B): The Principles of Fundamental Justice: 52:01, paragraphs 71 to 82

VIII(B)(1): Arbitrariness: 58:20, paragraphs 83 to 84

VIII(B)(2): Overbreadth: 59:05, paragraphs 85 to 88

VIII(B)(3): Gross Disproportionality: 1:02:02, paragraphs 89 to 90

VIII(B)(4): Parity: 1:03:41, paragraphs 91 to 93

IX: Does the Prohibition on Assisted Suicide Violate Section 15 of the Charter?: 1:04:35, paragraph 93

X: Section 1: 1:04:50, paragraphs 94 to 98

X(1): Rational Connection: 1:07:31, paragraphs 99 to 101

X(2): Minimal Impairment: 1:08:55, paragraphs 102 to 107

X(2)(a): Canada’s Challenge to the Facts: 1:13:23, paragraphs 108 to 109

X(2)(b): The Fresh Evidence: 1:14:46, paragraphs 110 to 113

X(2)(c): The Feasibility of Safeguard and the Possibility of a “Slippery Slope”: 1:17:08, paragraphs 114 to 121

X(3): Deleterious Effects and Salutary Benefits: 1:22:41, paragraphs 122 to 123

XI: Remedy

XI(A): The Court of Appeal’s Proposed Constitutional Exemption: 1:23:14, paragraphs 124 to 125

XI(B): Declaration of Invalidity: 1:24:28, paragraphs 126 to 132

XII: Costs: 1:28:36, paragraphs 133 to 146

XIII: Conclusion: 1:36:19, paragraph 147

Headnote provided by the Supreme Court of Canada:

Section 241(b) of the Criminal Code says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. After T was diagnosed with a fatal neurodegenerative disease in 2009, she challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. She was joined in her claim by C and J, who had assisted C’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic; a physician who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association. The Attorney General of British Columbia participated in the constitutional litigation as of right.

The trial judge found that the prohibition against physician-assisted dying violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1 of the Charter. She declared the prohibition unconstitutional, granted a one-year suspension of invalidity and provided T with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case, and awarded 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.

The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow this Court’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide. The dissenting judge found no errors in the trial judge’s assessment of stare decisis, her application of s. 7 or the corresponding analysis under s. 1. However, he concluded that the trial judge was bound by the conclusion in Rodriguez that any s. 15 infringement was saved by s. 1.

Held: The appeal should be allowed. Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity is suspended for 12 months. Special costs on a full indemnity basis are awarded against Canada throughout. The Attorney General of British Columbia will bear responsibility for 10 percent of the costs at trial on a full indemnity basis and will pay the costs associated with its presence at the appellate levels on a party-and-party basis.

The trial judge was entitled to revisit this Court’s decision in Rodriguez. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met. The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.

The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health. Health is an area of concurrent jurisdiction, which suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation. On the basis of the record, the interjurisdictional immunity claim cannot succeed.

Insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, ss. 241(b) and 14 of the Criminal Code deprive these adults of their right to life, liberty and security of the person under s. 7 of the Charter. The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.

The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates the principle against gross disproportionality.

Having concluded that the prohibition on physician-assisted dying violates s. 7, it is unnecessary to consider whether it deprives adults who are physically disabled of their right to equal treatment under s. 15 of the Charter.

Sections 241(b) and 14 of the Criminal Code are not saved by s. 1 of the Charter. While the limit is prescribed by law and the law has a pressing and substantial objective, the prohibition is not proportionate to the objective. An absolute prohibition on physician-assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that poses certain risks is a rational method of curtailing the risks. However, as the trial judge found, the evidence does not support the contention that a blanket prohibition is necessary in order to substantially meet the government’s objective. The trial judge made no palpable and overriding error in concluding, on the basis of evidence from scientists, medical practitioners, and others who are familiar with end-of-life decision-making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. It was also open to her to conclude that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally. The absolute prohibition is therefore not minimally impairing. Given this conclusion, it is not necessary to weigh the impacts of the law on protected rights against the beneficial effect of the law in terms of the greater public good.

The appropriate remedy is not to grant a free-standing constitutional exemption, but rather to issue a declaration of invalidity and to suspend it for 12 months. Nothing in this declaration would compel physicians to provide assistance in dying. The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment.

The appellants are entitled to an award of special costs on a full indemnity basis to cover the entire expense of bringing this case before the courts. A court may depart from the usual rule on costs and award special costs where two criteria are met. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not been previously resolved or that they transcend individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. Finally, only those costs that are shown to be reasonable and prudent will be covered by the award of special costs. Here, the trial judge did not err in awarding special costs in the truly exceptional circumstances of this case. It was also open to her to award 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it played in the proceedings. The trial judge was in the best position to determine the role taken by that Attorney General and the extent to which it shared carriage of the case.

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The text of the full decision can be found here. For the headnote (summary) provided by the Supreme Court of Canada, see section below “Timestamps”.

Timestamps:

I: Introduction: 00:09, paragraphs 1 to 3

II: Facts: 02:13, paragraphs 4 to 17

III: Decisions below: 09:39

III(A): Voir Dire, Superior Court of Quebec (Di Salvo J.): 09:43, paragraphs 18 to 21

III(B): Court of Appeal of Quebec, 2020 QCCA 746…(Bich, Bouchard and Healy JJ.A.):11:52, paragraphs 22 to 25

IV: Analysis: 14:18, paragraphs 26 to 29

IV(A): The Legal Principles

IV(A)(1): Sinclair and the Right to Second Consultation: 16:20, paragraphs 30 to 35

IV(A)(2): Undermining Legal Advice Includes Underlining Confidence in Council: 19:29, paragraphs 36 to 39

IV(A)(3): “Undermining” Is Not Limited to Intentional Belittling of Defence Counsel: 22:26, paragraphs 40 to 45

IV(B): Application: 27:06, paragraph 46

IV(B)(1): The Police Misled Mr. Dussault: 27:52, paragraphs 47 to 51

IV(B)(2): The Police Conduct Undermined the Legal Advice Provided to Mr. Dussault: 30:30, paragraphs 52 to 56

IV(C): Remedy: 33:13, paragraph 57

V: Disposition: 33:30, paragraph 58

Headnote provided by the Supreme Court of Canada:

In August 2013, the accused was arrested on charges of murder and arson. The police informed him of his rights, including his right to counsel under s. 10(b) of the Charter. At the police station, the accused spoke to a lawyer on the phone who explained the charges against him and his right to remain silent. The lawyer was left with the impression that the accused was not processing or understanding his advice. He offered to come to the station to meet in person, and the accused accepted. The lawyer then spoke with a police officer, informed him that he was coming to the police station and asked that the investigation be suspended. The police officer responded that this would be no problem or no trouble. The lawyer spoke again with the accused. He confirmed that he was coming to the police station to meet with him and he explained that, in the interim, he would be placed in a cell. The lawyer also told him not to speak to anyone.

Subsequently, during a conversation between the police officer and the lead investigators on the file, it was decided that the lawyer would not be permitted to meet with the accused. The police officer phoned the lawyer and informed him of this decision. The lawyer nevertheless came to the police station, but was not permitted to meet with the accused. The police officer later went to the accused’s cell and told him that another officer was ready to meet with him. The accused asked whether his lawyer had arrived, to which the police officer responded that the lawyer was not at the police station. The accused was then subjected to an interrogation, during which he made an incriminating statement.

At trial, the accused moved to exclude the statement on the basis that it was obtained in violation of his Charter rights, notably his right to counsel under s. 10(b). The trial judge held that the incriminating statement was admissible. She found that the accused had exercised his right to counsel, and that the police could reasonably presume that he had done so in a satisfactory manner. The accused was convicted of murder, and appealed from the conviction on the basis that the trial judge erred in dismissing his motion to exclude the incriminating statement. The Court of Appeal unanimously allowed the appeal, quashed the verdict, and ordered a new trial. It concluded that the accused’s phone call with the lawyer did not constitute a complete consultation for the purposes of s. 10(b) and that, as a result, the accused’s right to the effective assistance of counsel was breached.

Held: The appeal should be dismissed.

In the unique circumstances of the instant case, the police were required to provide the accused with a further opportunity to consult counsel before questioning him. There were objectively observable indicators that the police conduct had the effect of undermining the legal advice that the lawyer provided the accused during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide the accused with a second opportunity to consult counsel. In failing to do so, they breached the accused’s right to counsel under s. 10(b) of the Charter.

Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Stated at its broadest, the purpose of the right to counsel is to provide a detainee with an opportunity to obtain legal advice relevant to their legal situation. Police must inform detainees of the right to counsel (the informational duty) and must provide detainees who invoke this right with a reasonable opportunity to exercise it (the implementational duty). Failure to comply with either duty results in a breach of s. 10(b). Police can typically discharge their implementational duty by facilitating a single consultation at the time of detention or shortly thereafter. Detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel. Once a detainee has consulted with counsel, the police are entitled to begin eliciting evidence.

There are, however, exceptions to this general rule. The law has thus far recognized three categories of changed circumstances that can renew a detainee’s right to consult counsel: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. For any of these changed circumstances to give rise to a right to reconsult, they must be objectively observable. As a specific example of the third category of changed circumstances, the right to counsel may be renewed if police undermine the legal advice that the detainee has received. Police can undermine legal advice by undermining confidence in the lawyer who provided that advice. A detainee’s confidence in counsel anchors the solicitor‑client relationship and allows for the effective provision of legal advice. When the police undermine a detainee’s confidence in counsel, the legal advice that counsel has already provided may become distorted or nullified. Police are required to provide a new opportunity to consult with counsel in order to counteract these effects.

Undermining is not limited to intentional belittling of defence counsel. Police conduct can unintentionally undermine the legal advice provided to a detainee. The focus should remain on the objectively observable effects of the police conduct, rather than on the conduct itself. Where the police conduct has the effect of undermining the legal advice given to a detainee, and where it is objectively observable that this has occurred, the right to a second consultation arises. There is no need to prove that the police conduct was intended to have this effect. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it.

In the present case, two separate acts of the police officer combined to have the effect of undermining the legal advice provided to the accused. First, when the lawyer said that he was coming to the police station to meet with the accused and asked that the investigation be suspended, the police officer responded that this would be no problem or no trouble. In reasonable reliance on these words, the lawyer advised the accused that he was coming to the police station to meet with him and that, in the interim, he would be placed in a cell. The police officer’s words therefore had the effect, albeit indirect, of causing the accused to believe that an in‑person meeting would take place. In refusing to permit the lawyer to meet with the accused, the police effectively falsified an important premise of the lawyer’s advice — i.e., that the accused would be placed in a cell until the lawyer arrived. Second, the police officer misled the accused into believing that his lawyer had failed to come to the station for their in‑person consultation. During the interrogation, the accused repeatedly expressed that his lawyer had told him he would be there; he stated his belief that his lawyer had never actually arrived; he openly questioned why his lawyer had given him the advice that he had given; and he implied that his lawyer’s failure to show up had left him feeling alone. When these statements are taken in their totality and in light of all the relevant circumstances, it is clear that there were objectively observable indicators that the legal advice given to the accused had been undermined.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit dictarecordings.substack.com